Opinion
C080209
08-22-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT EUGENE WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CR22629)
Defendant Robert Eugene Williams, an inmate at Mule Creek State Prison, grabbed a correctional officer's testicles while being escorted to an inmate classification hearing. He was convicted by jury of battery by a prisoner on a non-confined person (Pen. Code, § 4501.5) and resisting an executive officer by use of force or violence (§ 69). Following a bifurcated hearing, the trial court found defendant was previously convicted of a strike offense within the meaning of the three strikes law (§§ 667, subd. (b)-(i), 1170.12). The trial court sentenced him to serve a term of six years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) the trial court erred in denying his motion under Evidence Code section 1043, also known as a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531), for disclosure of previous complaints made against the correctional officer whose testicles defendant grabbed; and (2) the trial court prejudicially erred and violated defendant's federal constitutional rights by failing to properly instruct the jury on self-defense.
We conclude the trial court erred in denying the Pitchess motion without conducting an in camera review of the correctional officer's personnel files. We must therefore conditionally reverse the judgment and remand the matter to the trial court for a new Pitchess hearing. Because defendant will have a right to appeal reinstatement of the judgment only with respect to challenging the Pitchess findings, and will be precluded from raising issues that were or could have been decided in this appeal (People v. Wycoff (2008) 164 Cal.App.4th 410, 415 (Wycoff)), we also address and reject his claim of instructional error.
FACTS
On the morning of May 6, 2014, defendant was among a number of inmates who were scheduled to appear before an inmate classification committee. The committee consisted of two correctional counselors, Sergeant Mark Priest and Officer Benjamin Gibney, and a staff psychologist, Dr. Demetri Coffin. The victim, a corrections officer, assisted the committee during the hearings, which were held inside a small classroom in the prison's education area.
At the start of the hearings, defendant was seated on a bench outside the hearing room. However, when his matter was called, he was no longer there. The victim called the observation booth outside the prison yard and had defendant summoned back to the hearing room over the intercom system. Defendant returned, but not before the committee moved on to another inmate's hearing. By the time this hearing was over, defendant had again returned to the prison yard. This time, Sergeant Priest and the victim went to the yard to retrieve him.
After conducting a routine pat-down search, the victim handcuffed defendant behind his back and escorted him back to the hearing room with Sergeant Priest, who lingered in the hallway for a moment as the victim entered the room with defendant. Officer Gibney had also left the room while defendant was retrieved. He entered the room in front of the victim and defendant and walked over to Dr. Coffin, who was seated at the committee's table. According to the victim's account of what happened next, he placed defendant in his designated chair. This chair was positioned with its back facing the committee's table and defendant straddled the back of the chair seat with his hands still handcuffed behind him. Once seated, defendant looked back at the victim with a "weird smirk on his face." He then leaned forward into the back of the chair and lifted his hands up high enough to grab the officer's testicles, causing "excruciating pain." The victim instinctively pushed defendant to the floor while yelling: "Let go of my balls, let go of my balls." Defendant briefly let go, but when the victim fell on top of him on the floor, he again grabbed the officer's testicles. The officer continued to yell for defendant to release them, while defendant yelled: "I will kill you. I will kill you." The victim then punched defendant twice in the side of the face, causing defendant to release his grip.
Sergeant Priest and Officer Gibney came to the victim's aid and helped subdue defendant, although neither saw what happened prior to both men falling to the ground. Sergeant Priest was still in the hallway when he heard a "loud bang" inside the room. As he explained: "What I observed was both of them on the ground. Obviously a chair was moved out of the way or got knocked out of the way. When I arrived, [defendant's] hand was on the victim's groin area and the victim was yelling, 'He has my nuts, he has got my nuts.' " While Officer Gibney was inside the room when the attack occurred, he was walking over to where Dr. Coffin was seated and was not looking at the victim or defendant. As he explained: "I heard a large -- a commotion. And I saw the table shift in front of me. I saw the victim was on top of [defendant]. And he was screaming, 'Let go of my nuts, my testicles.' Struck him a couple times." Officer Gibney then clarified the victim was yelling for defendant to release his testicles when he and defendant fell to the floor.
As mentioned, Dr. Coffin was already seated in the hearing room when the attack occurred. He had a largely unobstructed view of what happened. His version of events differed from that of the victim. Whereas the victim claimed he sat defendant down in the chair, Dr. Coffin maintained that defendant "actively resist[ed] sitting in the chair" and "push[ed] back on the victim" while still standing up. As he explained: "The victim is walking behind [defendant]. The chair is right here (indicating). He is telling him to sit down. [Defendant] becomes upset. He is saying no. He is starting to yell. He seems like he is pushing back, and the victim takes him to the ground." While Dr. Coffin could not see defendant's hands at the time he made the "movement backwards" towards the victim, the doctor testified the victim was yelling for defendant to release his testicles "when he went to the ground."
During cross-examination, defense counsel asked Dr. Coffin: "Prior to the victim taking [defendant] down, did you ever hear the victim say, my balls, let go of my balls prior to the takedown?" The doctor answered: "No." Defense counsel then asked: "All the comments about let go of my testicles or anything like that happened after the takedown?" The doctor answered: "Yes." This is arguably inconsistent with Dr Coffin's testimony that the victim was yelling for defendant to release is testicles "when he went to the ground." However, this apparent conflict can be reasonably reconciled by interpreting Dr. Coffin's testimony during cross-examination to mean simply that he did not hear the victim yell for defendant to release his testicles prior to the start of the takedown. In any event, because we are required to view the evidence in the light most favorable to the judgment, any such conflict must be resolved in favor of Dr. Coffin's initial testimony that the victim's plea happened while he took defendant to the ground; that testimony was also consistent with Officer Gibney's testimony.
The parties stipulated defendant was serving a sentence at Mule Creek State Prison when the assault occurred and the victim was not serving a prison sentence at the time.
DISCUSSION
I
Denial of Defendant's Pitchess Motion
Defendant claims the trial court erred in denying his Pitchess motion that sought disclosure of any previous complaints made against the victim for, among a long list of potential misconduct, "dishonesty, . . . fabrication of charges and/or evidence," "unnecessary acts of aggressive behavior, acts of violence and/or attempted violence, or acts of excessive force and/or attempted excessive force." His challenge to the trial court's denial of the motion extends only to these categories of complaints. In support of the motion, defense counsel submitted a declaration providing the following version of events: "The victim, to cover his abusive conduct and excessive use of force on [defendant], fabricated facts to make it look as though [defendant] had done something wrong, when it is in fact impossible for [defendant] to raise his cuffed arms and reach out a foot behind and grab the [officer's] groin." The asserted "abusive conduct and excessive use of force" was set forth more specifically in the motion itself that stated the victim "slapped [defendant] in the back of the head and pushed him over, falling on top of him." The motion also attached the victim's report of the incident that tracked his trial testimony recounted above. The trial court determined this showing was insufficient to warrant in camera review of the officer's personnel file and denied the motion. Defendant argues this was error. We agree.
A criminal defendant has the right to "compel discovery" of certain information in police officer personnel files by demonstrating good cause. (Pitchess, supra, 11 Cal.3d at pp. 536-538.) That right is codified in Evidence Code sections 1043, 1044, and 1045. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 (City of Santa Cruz); see also §§ 832.7, 832.8.)
"Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.] A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.]" (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick); Evid. Code, § 1043, subd. (b)(3).) This two-part showing is a "relatively low threshold for discovery." (City of Santa Cruz, supra, 49 Cal.3d at p. 83.) Once the trial court determines good cause has been shown, it must conduct an in camera review of the records and disclose only those records and information that are relevant and not subject to exclusion from disclosure. (Evid. Code, § 1045, subds. (a) & (b).)
Relying on Warrick, supra, 35 Cal.4th 1011 and People v. Hustead (1999) 74 Cal.App.4th 410 (Hustead), defendant argues he satisfied the good cause showing set forth above. In Warrick, the defendant sought disclosure of complaints against three officers involved in his arrest for possession of cocaine for sale. According to the police report that was attributed to these officers, when they approached the defendant, who was located in an area known for narcotics activities while holding a plastic baggie containing "off-white solids," the defendant ran away, discarding numerous "off-white lumps" as he ran. Two of the officers arrested the defendant after a short chase, finding an empty plastic baggie in his possession along with a small amount of cash; the third officer collected 42 of these off-white lumps from the ground along the route the defendant ran. (Id. at pp. 1016-1017.) In support of the defendant's Pitchess motion, defense counsel submitted a declaration providing the defendant's version of events, i.e., he ran from the officers because he feared arrest on an outstanding warrant; meanwhile, various people were fighting with each other while picking up rock cocaine from the ground; one of the officers who collected some of the rocks told the defendant he must have been the one who threw them; the defendant denied possessing or discarding cocaine and claimed he was in the area to buy cocaine. Defense counsel suggested the officers, not knowing who had discarded the cocaine, falsely claimed to have seen the defendant do so while running away. (Id. at p. 1017.)
Our Supreme Court concluded the defendant made a sufficient good cause showing to justify in camera review of the officers' personnel files. (Warrick, supra, at p. 1027.) The court explained that the "materiality inquiry . . . requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Id. at p. 1021.) The defendant must do so with specificity, and the factual scenario provided by the defendant must be "plausible" in the sense the asserted officer misconduct "might or could have occurred." (Id. at p. 1026.) After agreeing with the Court of Appeal's conclusion that the defendant's factual scenario was sufficiently specific to support his defense that the officers falsely arrested him and then made false statements in the police report to support the arrest (id. at pp. 1022-1023), our Supreme Court rejected the Court of Appeal's further conclusion this scenario was implausible because "that version of events was unlikely." (Id. at p. 1024.) The court explained: "To require a criminal defendant to present a credible or believable factual account of, or a motive for, police misconduct suggests that the trial court's task in assessing a Pitchess motion is to weigh or assess the evidence. It is not. A trial court hearing a Pitchess motion normally has before it only those documents submitted by the parties, plus whatever factual representations counsel may make in arguing the motion. The trial court does not determine whether a defendant's version of events, with or without corroborating collateral evidence, is persuasive—a task that in many cases would be tantamount to determining whether the defendant is probably innocent or probably guilty." (Id. at p. 1026.) Instead, "to obtain in-chambers review a defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred." (Id. at p. 1016.) The court concluded the defendant's factual scenario was plausible under this standard. (Id. at p. 1027.)
In Hustead, supra, 74 Cal.App.4th 410, cited with approval in Warrick, the defendant was charged with evading arrest and sought discovery regarding whether the officer who pursued him in a high-speed chase had "a history of misstating or fabricating facts" in police reports. (Hustead at p. 416.) In support of the motion, defense counsel submitted a declaration stating, "the officer made material misstatements with respect to his observations, including fabricating [the defendant's] alleged dangerous driving maneuvers," the defendant denied driving "in the manner described in the report" and claimed "his driving route was different from that found in the report," and "a material and substantial issue in the trial would be the character, habits, customs and credibility of the officer." (Id. at pp. 416-417.) The Court of Appeal concluded, "[t]hese allegations were sufficient to establish a plausible factual foundation for an allegation that the officer made false accusations in his report. It demonstrated that [the defendant's] defense would be that he did not drive in the manner suggested by the police report and therefore the charges against him were not justified." (Id. at p. 417.)
Here, the proposed defense set forth in the Pitchess motion, and advanced at trial, was that defendant did not attack the victim. Rather, it was the officer who used excessive force against defendant by forcing him to the ground in the committee room. He then lied about defendant grabbing his testicles to justify his use of such force, and defendant's actions while on the ground were necessary to defend himself against the excessive force employed by the officer. An officer's use of excessive force is a defense to the crime of resisting an executive officer by use of force or violence (§ 69). (See People v. Brown (2016) 245 Cal.App.4th 140, 154.) If defendant's response to the officer's use of excessive force was itself excessive, he would still be guilty of battery, but not of violating section 69. (Ibid., see also People v. Chastain (1981) 122 Cal.App.3d 138, 145 ["even if the officer is not acting within the scope of his [or her] duties because of his [or her] use of excessive force, the defendant may still be guilty of simple battery if he [or she] responds with excessive force"].) If, however, the jury determined defendant actually and reasonably believed his response was necessary to defend himself, self-defense would supply a complete defense to both the forcible resistance charge and the charge of battery on a non-confined person (§ 4501.5). (See People v. Jefferson (2004) 119 Cal.App.4th 508, 518.) Defendant has therefore "shown a logical connection between the charges and the proposed defense." (Warrick, supra, at p. 1027.)
Defendant's factual scenario is also specific enough to "support [his] claim of officer misconduct," and the discovery sought "would support the proposed defense." While not as detailed as the factual scenarios provided in Warrick, the facts of this case are more simple. There was a confrontation between the victim and defendant. The victim claimed in his report, and at trial, that defendant grabbed his testicles without any provocation, prompting the officer's employment of force to subdue defendant and secure their release. Defendant denied grabbing the victim's testicles, claimed it was the officer who initiated the confrontation by using excessive force in taking him to the ground, and further claimed the officer lied about these events in his incident report in order to justify his use of excessive force. With respect to specificity, we conclude this factual scenario is similar to that provided in Hustead and found to be "sufficient to establish a plausible factual foundation for an allegation that the officer made false accusations in his report." (Hustead, supra, at p. 417.) As in that case, defendant's submission demonstrated his "defense would be that he did not [behave] in the manner suggested by the police report and therefore the charges against him were not justified." (Ibid.) However, unlike Hustead, where a resisting an officer charge was dismissed and therefore review of the officer's file for complaints of excessive force was no longer relevant to the case (id. at p. 416), here, whether or not the victim used excessive force was the basis of the proposed defense to both charges filed against defendant. Thus, any complaints relating to dishonesty and the use of excessive force would support the proposed defense in this case.
Finally, with respect to whether or not defendant's factual scenario is "plausible," we note that under Warrick, all that is required is that "the scenario of alleged officer misconduct could or might have occurred." (Warrick, supra, at p. 1016.) Whether it was believable or not is irrelevant to the analysis. We conclude defendant's scenario was at least as plausible as that advanced in Warrick since an independent witness account (Coffin) arguably supported his version.
Nevertheless, the Attorney General argues this case is more analogous to People v. Thompson (2006) 141 Cal.App.4th 1312 (Thompson), in which the Court of Appeal affirmed the trial court's decision to deny a Pitchess motion without conducting an in camera review of officer personnel files where the factual scenario provided by the defendant was "not internally consistent or complete." (Id. at p. 1317.) There, the defendant sold drugs to an undercover officer who was wearing a wire and working with several other officers, some of whom watched the transaction from 25 to 30 feet away and some of whom monitored the wire and heard the verbal portion of the transaction. (Id. at p. 1315.) In support of the defendant's Pitchess motion, seeking discovery relating to every officer involved in the operation, "[a] declaration from defense counsel stated that 'the officers did not recover any buy money from the defendant, nor did the defendant offer and sell drugs to the undercover officer.' The 'officers saw defendant and arrested him because he was in an area where they were doing arrests.' When 'defendant was stopped by the police and once they realized he had a prior criminal history they fabricated the alleged events and used narcotics already in their possession and attributed these drugs to the defendant.' The charges 'are a fabrication manufactured by the officers to avoid any type of liability for their mishandling of the situation and to punish the defendant for being in the wrong area, at the wrong time and for having a prior criminal history. . . .' " (Id. at p. 1317.)
Concluding this factual scenario was insufficient to justify an in camera review of the personnel files, the court explained: "We do not reject [the defendant's] explanation because it lacked credibility, but because it does not present a factual account of the scope of the alleged police misconduct, and does not explain his own actions in a manner that adequately supports his defense." (Thompson, supra, 141 Cal.App.4th at p. 1317.) Distinguishing Warrick, supra, 35 Cal.4th 1011, the court stated: "[The defendant] does not provide an alternate version of the facts regarding his presence and his actions prior to and at the time of his arrest. He does not explain the facts set forth in the police report. In essence, his declaration claims that the entire incident was fabricated and, by inference, that the police officers conspired to do so in advance. Thompson is not asserting that officers planted evidence and falsified a police report. He is asserting that, because he was standing at a particular location, 11 police officers conspired to plant narcotics and recorded money in his possession, and to fabricate virtually all the events preceding and following his arrest. The officers were not called upon to exaggerate or forget certain facts, or make assertions based on assumptions and inferences. The officers agreed to completely misrepresent what they saw and heard as percipient witnesses." (Thompson at p. 1318.)
Thompson, supra, 141 Cal.App.4th 1312 is distinguishable. Here, there was an obvious reason for defendant's presence where the assault occurred: he was an inmate at the prison. Nor was defendant alleging a massive conspiracy among several officers to frame him for a crime based on virtually no supporting facts. He simply claimed the victim lied about defendant's conduct prior to being taken to the ground to justify his use of excessive force. Unlike Thompson, defendant's factual scenario is not inherently implausible.
We conclude the trial court abused its discretion in denying defendant's Pitchess motion without conducting an in camera review of the victim's personnel file. We must therefore conditionally reverse the judgment and remand the matter to the trial court for a new Pitchess hearing. "If the trial court finds there are discoverable records, they shall be produced and the court shall conduct such further proceedings as are necessary and appropriate. If the court finds there are no discoverable records, or that there is discoverable information but [defendant] cannot establish that he was prejudiced by the denial of discovery, the judgment shall be reinstated as of that date." (Wycoff, supra, 164 Cal.App.4th at p. 416.)
II
Instructional Error
Defendant also contends the trial court prejudicially erred and violated his federal constitutional rights by failing to properly instruct the jury on self-defense. We disagree.
A.
Relevant Instructions Given
With respect to the first count, battery by a prisoner on a non-confined person, the jury was instructed with CALCRIM No. 2723 as follows: "To prove the defendant is guilty of this crime, the People must prove that, one, the defendant willfully touched [the victim] in a harmful or offensive manner. Two, when he acted, the defendant was serving a sentence in a California state prison. Three, that [the victim] was not serving a sentence in the state prison. And, four, the defendant did not act in self-defense. [¶] 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. The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. The touching can be done indirectly by causing an object to touch the other person. [¶] A person is serving a sentence in a state prison if he or she is confined in Mule Creek State Prison by an order made according to law. A custodial officer is not unlawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. Instruction 2671 explains when force is unreasonable or excessive." (Italics added.)
This is either an error in the transcription or the trial court misspoke. However, the written instruction provided to the jury correctly stated: "A custodial officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties." (Italics added.) The instruction then notified the jury CALCRIM No. 2671 would explain this further. In that explanation, the same line was provided that was both stated correctly and properly transcribed. This line was correctly repeated twice more in the instructions, in CALCRIM Nos. 2652 and 2670.
CALCRIM No. 2671 then explained: "The People have the burden of proving beyond a reasonable doubt that [the victim] was lawfully performing his duties as a correctional officer. If the People have not met this burden, you must find the defendant not guilty of resisting an executive officer in performance of his duties. A custodial officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. Special rules control the use of force. A custodial officer may use reasonable force in his or her duties to restrain a person, to overcome resistance, or prevent escape, or in self-defense. [¶] If a person knows or reasonably should know that a custodial officer is restraining him or her, that person must not use force or any weapon to resist an officer's use of reasonably force. If a custodial officer uses unreasonable or excessive force while restraining a person or overcoming a person's resistance or defending himself or herself from a person, that person may lawfully use reasonable force to defend himself or herself. [¶] A person uses reasonable force when he or she uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force, and uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection." (Italics added.)
With respect to the second count, resisting an executive officer by use of force or violence, the jury was instructed with CALCRIM No. 2652 as follows: "To prove that the defendant is guilty of this crime, the People must prove, one, the defendant unlawfully used force or violence to resist an executive officer. Two, when the defendant acted, the officer was performing his lawful duties. And, three, when the defendant acted, he knew that 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 correctional officer is an executive officer. A sworn member of the California Department of Corrections [and] Rehabilitation authorized by [sections] 830.5, 830.55, and that would be of the Penal Code is a peace officer. The duties of correctional officer[s] include maintaining custody of persons housed in a facility. And they perform tasks related to the operation of that facility. [¶] A peace officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. Instruction 2670 explains when force is unreasonable or excessive."
CALCRIM No. 2670 then explained: "The People have the burden of proving beyond a reasonable doubt that [the victim] was lawfully performing his duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty. [¶] . . . [¶] . . . A peace officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. A peace officer may use reasonable force to arrest or detain someone to prevent escape, to overcome resistance, or in self-defense. [¶] If a person knows or reasonably should know that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force. [¶] If a peace officer uses unreasonable or excessive force while detaining or attempting to detain a person, that person may lawfully use unreasonable force to defend himself or herself. . . . [¶] A person being arrested or detained uses reasonable force when he or she uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force. And, two, uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection." (Italics added.)
Again, this is either an error in the transcription or the trial court misspoke. The written instruction correctly states: "If a peace officer uses unreasonable or excessive force while detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself." (Italics added.) This principle was also correctly stated in CALCRIM No. 2671. However, to the extent the jury might have been misled by the possible misstatement in the trial court's oral delivery of CALCRIM No. 2670, this error would have inured to defendant's benefit. We mention it no further. --------
B.
Analysis
Defendant argues the trial court should have also given the jury the standard instruction on self-defense, CALCRIM No. 3470. The Attorney General responds by arguing the claim is forfeited because defendant did not request such an instruction and, in any event, the instructions given "fully and fairly instructed the jury on the applicable law, including [defendant's] right to self-defense." However, as defendant points out with respect to forfeiture, a trial court has a sua sponte duty to instruct on general principles of law that are necessary to the jury's understanding of the case, including affirmative defenses "if there is substantial evidence of the defense and if it is not inconsistent with the defendant's theory of the case." (People v. Wilson (2005) 36 Cal.4th 309, 331.)
Self-defense was obviously not inconsistent with defendant's theory of the case; it was his theory of the case. We do note there was not much evidence to support the theory. Defendant did not put on a defense case. While there were inconsistencies between the victim's account of events and that provided by Dr. Coffin, the latter described a backwards motion made by defendant prior to the officer taking defendant to the ground. Thus, while their testimony differed with respect to whether or not the victim was able to sit defendant down in the chair prior to the confrontation, and whether or not words were exchanged at the time, Dr. Coffin's testimony nevertheless supported the prosecution's theory defendant initiated the confrontation by grabbing the officer's testicles. But, as mentioned previously, there was also some inconsistency in Dr. Coffin's testimony with respect to whether the victim was yelling for defendant to release his testicles when they went to the ground or afterwards. Assuming this evidence was "sufficient for a reasonable jury to find in favor of . . . defendant" (People v. Salas (2006) 37 Cal.4th 967, 982), i.e., by raising a reasonable doubt defendant initiated the confrontation instead of reacting in a reasonable manner to the victim's use of excessive force against him, we conclude the instructions given satisfied that sua sponte duty.
Tailored to the circumstances of this case, CALCRIM No. 3470 would have informed the jury:
"Self-defense is a defense to battery by a prisoner on a non-confined person and resisting an executive officer by use of force or violence. The defendant is not guilty of those crimes if he used force against the other person in lawful self-defense. The defendant acted in lawful self-defense if:
"1. The defendant reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully;
"2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;
"AND
"3. The defendant used no more force than was reasonably necessary to defend against that danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of bodily injury to himself or an imminent danger that he would be touched unlawfully. Defendant's belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense.
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed." (CALCRIM No. 3470.)
The instructions provided covered these principles in the specific factual context presented by this case, i.e., self-defense in response to an unlawful use of excessive force by a correctional officer. Defendant does not directly dispute this. He does argue CALCRIM No. 3470 was nevertheless required because the instructions provided "referr[ed] only to the reasonable force that may be used by a custodial officer, and did not purport to define when the defendant was authorized to use force." Not so. The instructions correctly provided a defendant in the custodial setting is authorized to use "reasonable force" in self-defense "[i]f a custodial officer uses unreasonable or excessive force while restraining a person or overcoming a person's resistance or defending himself or herself from a person . . . ." That is precisely when the right to use reasonable force in self-defense arises in the custodial setting. (See People v. Curtis (1969) 70 Cal.2d 347, 356-357, disapproved on another point in People v. Gonzalez (1990) 51 Cal.3d 1179, 1222; see also People v. Coleman (1978) 84 Cal.App.3d 1016, 1023.) Defendant also argues the instructions were "insufficient to define the concept of self-defense in the context of a correctional officer who is acting with excessive force." Again, not so. The instructions correctly explained defendant was entitled to use "reasonable force" in such a situation, defined as "that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force, and . . . no more force than a reasonable person in the same situation would believe is necessary for his or her protection." These are accurate statements of the law and are entirely consistent with CALCRIM No. 3470.
Finally, we also reject defendant's complaint that "the jury was never told that self-defense in the context of this case related not only to the defendant's fear of imminent personal injury, but also to the concept of what constitutes excessive force, i.e., an illegal and/or harmful touching." While CALCRIM No. 3470 would have informed the jury the first element of a self-defense claim is that the defendant must have reasonably believed he or she was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully, in the custodial setting, it is the officer's use of unreasonable or excessive force that makes the touching unlawful. The given instructions so stated.
We conclude the trial court had no sua sponte duty to supplement the specific self-defense instructions contained in CALCRIM Nos. 2670 and 2671 with CALCRIM No. 3470's more general definition of the defense.
DISPOSITION
The judgment is conditionally reversed and the matter is remanded to the trial court with directions to hold a new hearing on defendant's Pitchess motion in accordance with the procedures described in this opinion.
/s/_________
HOCH, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
DUARTE, J.