16 Cal. App. 5th 276
Cal. Ct. App. 5th2017Background
- At San Francisco General Hospital in 2014 deputy sheriff Michael Lewelling (defendant) approached sleeping patient Fernando Guanill to have him escorted out after staff described disruptive behavior; an altercation followed and Lewelling was charged under Penal Code § 149 (assault by a public officer).
- Section 149 makes it a crime for a public officer who, "under color of authority, without lawful necessity, assaults or beats any person." There is no CALCRIM instruction for § 149, and the trial court drafted special instructions.
- The trial court instructed jurors that the element "without lawful necessity" would be defined by reference to CALCRIM No. 2670 ("Lawful Performance: Peace Officer") and also instructed that the People must prove the officer used more force than necessary—creating two overlapping definitions.
- The prosecutor argued consistently that an unlawful detention (lack of reasonable suspicion or probable cause) plus any touching satisfied § 149—summarized by the prosecutor as "§ 149 is a § 146 plus force." The People conceded at the new-trial hearing that their theory tied lawful necessity to legal authority to detain/arrest.
- The jury convicted Lewelling of felony § 149; defendant appealed arguing the instructions were erroneous and prejudicial, § 149 is void for vagueness, and the evidence was insufficient. The Court of Appeal reversed soley on instructional error grounds.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Lewelling) | Held |
|---|---|---|---|
| Whether the trial instructions correctly defined the § 149 element "without lawful necessity" | The instructions, including CALCRIM No. 2670 and language about excessive force, correctly allowed conviction when an officer unlawfully detained or used excessive force | The court misdefined "without lawful necessity" by directing jurors to CALCRIM 2670 (which permits conviction for unlawful detention alone), confusing an element and allowing conviction on an improper theory | Reversed: instructions were misleading/wrong because they allowed conviction based on unlawful detention alone; error was prejudicial |
| Whether the instructional error was forfeited by defendant's failure to object at trial | People argued defendant drafted much of the instruction and failed to object, so appellate review is forfeited | Defendant argued trial court has sua sponte duty to correctly instruct elements, People conceded trial court could decide the issue, and § 1259 allows appellate review if substantial rights affected | Not forfeited: appellate review proper because the error concerned elements of the offense and affected substantial rights |
| Standard for reviewing the instructional error | People advocated usual ambiguity test (reasonable likelihood jurors were misled) | Defendant argued that a facially erroneous instruction permitting conviction on legally impermissible grounds triggers reversal without applying the reasonable-likelihood test | Court agreed with defendant that facially erroneous instruction permitting conviction on invalid ground requires reversal; even under reasonable-likelihood test reversal was required |
| Whether the People’s theory ("§ 146 plus force") is compatible with statutory scheme and civil standards | People maintained unlawful detention plus any touching supports § 149 conviction | Defendant argued § 146 already proscribes unlawful detention, § 149 requires force beyond lawful necessity (excessive force); civil standards likewise require excessiveness | Court found the People’s conflation legally problematic and that instructions allowed the jury to convict on a theory that conflicts with statutory scheme and ordinary excess-force concepts |
Key Cases Cited
- People v. Cummings, 4 Cal.4th 1233 (1993) (trial court has duty to properly instruct on all elements)
- People v. Sedeno, 10 Cal.3d 703 (1974) (same: court's sua sponte duty to instruct)
- People v. Hillhouse, 27 Cal.4th 469 (2002) (§ 1259 permits appellate review of instructions affecting substantial rights)
- People v. Chun, 45 Cal.4th 1172 (2009) (standard for reversal when instruction misstating an element may have contributed to verdict)
- Hedgpeth v. Pulido, 555 U.S. 57 (2008) (harmless error and constitutional-review principles for jury instructions)
- Neder v. United States, 527 U.S. 1 (1999) (prejudice standard when jury instruction omits an element)
- People v. Mehserle, 206 Cal.App.4th 1125 (2012) (prior § 149 instruction discussion affirmed in different factual context)
- People v. Gay, 42 Cal.4th 1195 (2008) (trial-court replies to jury questions and effect of instruction references during deliberations)
- People v. Hart, 20 Cal.4th 546 (1999) (requirements for requesting clarifying instructions and forfeiture principles)
- People v. McDonald, 238 Cal.App.4th 16 (2015) (review when jury may have relied on one of two theories, one invalid)