*1 Fеb. Dist., 2016.] Div. Four. First A141172. [No. PEOPLE, and Respondent, Plaintiff
THE BROWN, Appellant. Defendant
WILBERT
Counsel O’Connell, J. Bradley under appointment Court of Appeal, for Defend- ant and Appellant. Harris, D. General, Kamala Attorney Laurence, Jeffrey M. Assistant Acting General,
Attorney E. Gregg Zywicke Slavin, and Bruce M. Deputy Attorneys General, for Plaintiff Respondent. Opinion
STREETER, J.
I.
INTRODUCTION In November Wilbert Brown was riding his bicycle on a sidewalk one in evening Richmond when Officer Michael Ricchiuto ordered him to for
stop wearing earphones while riding, and for Brown, having light. who was 67 years time, old at the flee, attempted but Ricchiuto and a officer, second Officer James chased Moody, him down and arrested him. After physical arrest, altercation during the officers restrained Brown and found in a drugs he baggie had discarded during Charges chase. out of arising this incident resulted in felony convictions for possession of cocaine and transportation using or violence to resist an executive officer performance duty violation of Penal Code section 69 (section 69). Brown appeals, seeking reversal of his conviction for violating section 69 on (1) two grounds: the failure to instruct the jury sua sponte regarding as a simple assault lesser necessarily included offense and erroneous admission of expert testimony regarding standards for use of *6 police We force. agree with both reverse, and contentions shall conditionally finding errors, that these considered and individually either a cumulatively, require modification or reversal of Brown’s conviction for an officer resisting by violence.1 1Brown also seeks of the pretrial review denial aof discovery motion for personnel records of the officers in pursuant involved Superior incident to Pitchess v. Court 897, Cal.3d Cal.Rptr. (Pitchess). 522 P.2d Having 305] reviewed the withheld reсords, personnel we the trial 1, affirm denial court’s of Brown’s August Pitchess motion. On 2014, this court filed indicating an order we had that reviewed the sealed record of the Pitchess proceeding and found “that there are no discoverable documents under seal should be brief, produced to counsel.” opening In his appellant requests a second review be conducted
II. PROCEDURE AND OF FACTS STATEMENT Version 2011: November Arrest on Brown’s A. Officers’ Version Brown’s Versus Near arrest was undisputed. to Brown’s leading of events series
The initial in in his cruiser was patrol Ricchiuto Officer November dusk on traffick- Richmond, drug known neighborhood a area of Triangle the Iron He men. African-American involving young often activity, and gang ing man, a riding bicycle Brown, African-American 67-year-old a Wilbert spotted Code, wearing while Municipal Richmond in violation on the sidewalk Vehicle Code. the California violation of in light without and headphones and tried Brown sped up but Brown to stop, yelled Ricchiuto Officer officer, who Moody, Officer Another in flee, pursuit. Ricchiuto with Officer cruiser, and at one the chase in joined in a second Ricchiuto backing up was cause a collision. effort to Brown’s in path front of his car in wedged point side car, breaking a it and Moody’s grazing around to steer managed Brown and pursued their vehicles left eventually officers Both as he passed. mirror lot, parking in an abandoned Brown cornered foot. The officers Brown on In course of brief altercation. after a arrested him they where head, while his and knots on rib altercation, a fractured sustained Brown his right to the knuckle fracture” a “boxer’s sustained Officer Ricchiuto Brown, were several both officers with encounter time of their At the hand. Moody and “late 20s” was his (Ricchiuto than Brown decades younger much were also They physically condition. 38), in excellent physical was and inches, while 140 pounds, feet eight was five (Brown Brown than bigger feet, 200 pounds, respectively). and six officers were Brown was caught the officers when lot parking What happened dispute. matter of some old Brown how officers, had no idea they at that point
According before, wearing was who never seen had them, they man he was a was. To chase, of felony who, suspected of the clothes, this stage and baggy first, him yelled Brown Moody caught up Officer trafficking. drug bicycle, his him, him off of throwing tackled and then stop, repeatedly over” into back “flipp[ed] “aggressively” Brown ground. him to the taking combative, hands” with “swinging became “sitting position,” himself, Moody Officer and protect Brown control of To get fist.” “clenched *7 reach disposition we analysis. The legal summary and his factual with “benefit” order. August our reaffirms used hit strike,” his fist to Brown in the area torso with a but “compliance had no effect him; and Brown continued punch to swing at that point, assistance, Officer Ricchiuto came and, to Officer Moody’s seeing Brown waistband, reach for something strikes,” his delivered three “compliance torso, one with his knee to Brown’s and two with his fists side of Brown’s head. These blows caused Brown to and swinging2 shield stop hands, head with his a defensive move that control, him finally brought under since it allowed the officers to secure his hands and him in place handcuffs. Brown’s account of the officers’ actions was different. He quite testified that he fell off his in the lot bicycle that, after parking hitting curb. He claimed without kind of any and while he warning, was facedown on the ground, not and no resisting one of the longer fleeing, officers dived on his back with force, enormous officer, “like him Superman,” pinning down. That angry thеn him unprovoked, proceeded in the head slug three times. In Brown’s all the telling, second officer did was handcuff him after he had been pummeled by first officer. Brown denied swinging either officer. He testified, “I wouldn’t even no, to—I couldn’t try win anyway, but I didn’t.”
B. Expert Testimony The prosecution presented three its experts support case, the first two to support drug and the third charges support an charge resisting executive officer with force or violence. Criminalist Richard Bowden testified as an in the area of controlled analyzing substances. Bowden examine was asked to of 10 knot-tied packet plastic bags containing off-white substance that had been chunky contained in the baggie Brown discarded. Bowden tested one of the bags concluded it contained grams 0.219 of cocaine base. Bowden offered the that the opinion other which contained packets, substantially similar amounts of what ap- substance, to be the same peared were also cocaine. The total estimated net of the weight substance in all 10 bags 1.799 grams.
Detective Castillo of the Miguel Richmond Police (RPD) Department testified anas on the subject of cocaine base for sale. possession Castillo that when a opined narcotics for sale rather than person carrying use, he holds the personal drugs individual use in order to packages transactions, make maximize speedy and avoid profits, scale. A carrying “street-level dealer” also avoids to use having sheets “pay/owe” by packaging amount, narcotics in a dose which single 0.2 approximately grams. When asked about a who was in hypothetical suspect of the amount and possession wearing Both officers were bullet-proof Moody vests. Officer testified that Brown never hitting succeeded in him. Officer Ricchiuto testified that Brown hit him twice. Neither suffered injuries Moody from what “flail[ing]” Officer described as Brown’s at them.
148 Brown, Castillo opined when chasing found Ricchiuto that substances type amounts of sells useable who a dealer to street-level belonged the drugs that cocaine base. of rock that a dose cross-examination, single testified Castillo
Under to 40 minutes and for user approximately an effect on the cocaine has In Castillo’s day. times a several of this drug user partake the typical time, from a get high dose at however, one only users buy most experience, more, buying of simply instead for it, suppliers back to their go then he cases in which that in the 15 conceded time. Castillo at one doses several sale, the amount of cocaine regarding possession as an expert had testified 1.7 grams. small as as was never drugs question Walle, on officer, Albert provided Sergeant RPD Another her began tactics.” prosecutor “defensive officer of police the subject use to authority police the legal about asking Walle by examination 835 authorizes Code section that Penal testified force. Walle reasonable has offense when public necessary force when reasonable to “use police arrest, an or overcome escape prevent to effect in order been committed force” is of “reasonable concept also explained Walle resistance.” called Graham v. Connor.3 When case Court Supreme defined in means, stated: Walle reasonable force of what gist” “general asked for the the circumstances force, at the totality try look using you’re “Whеnever force, using the time who the officer at perspective through fluid, also various and there’s evolving, is mind that the situation keeping well, that as too.” come in factors that force, their to use reasonable officers have that when
Walle testified their resistance overcoming by to subdue suspects is objective primary decision about the officer’s affecting factor The main safely. detaining them level” officer because “resistance will be the suspect’s what force to use how to To teach officers doing. what the suspect to be going responding continuum,” of force which a “use employs RPD respond appropriately, matched against on one side of resistance escalation of a ladder of consists are side. Officers other the officer of force ladder of escalation a higher but to employ as a “fair fight,” at an altercation not to look taught to a a baton bring don’t want to faces: “You he or she level of than than what higher at least one level to be also want knife so fight, you . encountering.” . . you’re officer who faces for an considerations
Walle other important outlined as and take control need to react include the which resistance suspect, from control of of gaining fatigue; importance avoid quickly possible (Graham). S.Ct. 1865] L.Ed.2d v. Connor U.S. 386 [104 See Graham *9 officer; hands because of their to suspect’s and potential injure the need to be attuned to movements toward the waist area because it is common to keep a there. Walle testified that an officer weapon does not have “control” of a until he or she The suspect resisting. “tools” stops officers Walle carry, testified, handcuffs, Taser, include a baton, gun, a pepper spray, and a addition, In flashlight. the officers are to taught use their “personal weapons,” hands, forearms, elbows, which include and knees feet. Different tools are for different levels of force. appropriate or a Using body baton is parts force,” level, considered “lower level while a Taser anis “intermediate” and a firearm is the highest level of force.
The asked Walle to prosecutor address hypothetical situation in which a was a closed fist to suspect using and to swing an officer. attempt punch Walle characterized that hypothetical in “assaultive” suspect engaging situation, behavior. In that officers are trained to use either personal body Taser, baton or weapons, Officers are pepper spray. also trained to provide assistance to an officer with assaultive dealing behavior because it is usually assists, easier to control when another gain officer and control gaining quickly is for the of the safety officers as well as the important Walle testified suspect. seconds, use-of-force incidences within a matter happen and “[m]ost they’re constantly evolving they’re and an very dynamic, officer has to fast, think on his feet and oftentimes very doesn’t have time —has to be very instinctive and a lot of it is responsive training.” Verdict Jury and Sentence
C. The jury was instructed on two felony dmg for sale of charges; possession (Health Code, cocaine 11351.5) base & Saf. cocaine base transporting § Code, (Health 11352). & Saf. It also received instruction regarding posses- § Code, (Health sion of cocaine base & 11350), Saf. as a lesser of the offense § for sale possession charge. also wаs instructed on the charge 69, Brown violated section the offense which is of this subject appeal. 69, (a) Section subdivision states: who “Every means of person attempts, by violence, threat or to deter any or executive officer from prevent perform- law, resists, ing any duty officer or who imposed upon by knowingly by violence, officer, the use of force or in the or her performance duty, is a fine by ($10,000), not ten thousand dollars or punishable exceeding by 1170, imprisonment (h) subdivision of Section or in a pursuant county jail one exceeding year, or both such fine and by imprisonment.” “ Section can be violated in two ‘The first ways. separate threats or deter violence to or an officer from attempting prevent perform law; the second ing duty imposed by force or violence an resisting by ” Smith officer in the (People v. of his or her performance duty.’ case, (Smith).) In this 303 P.3d 368] Cal.4th which violation of section 69 about second type instructed jury was resisted the officer defendant knowingly prove the prosecution requires ” “ violence,’ lawfully was acting and “that the officer of force the use ‘by both the 241.) At {Smith, at the request offense.” time of the at the defense, with option provided and the prosecution the lawful during an officer resisting Brown of misdemeanor convicting Code subdivision in violation of Penal section duties of his performance felony offense the section 69 included 148(a)), as lesser (a) (section *10 was that the charge to the section 69 Brown’s defense The of theory charge. because used they arrested him they act when lawfully did not officers re the guidance jury The instructional excessive force. and unreasonable 2670, “A peace No. which provides was CALCRIM on this issue ceived someone, to prevеnt to arrest or detain use reasonable force may officer resistance, inor self-defense.”4 to overcome escape, verdicts, 4, 2013, Brown not finding guilty its the returned jury On October sale, of the lesser included for but guilty of cocaine base of possession base; cocaine of of guilty transportation of cocaine possession offense in the lawful resist an officer base; or violence to and force guilty using sentenced in Brown was duties in section 69. of his violation performance to dismiss the a defense motion The trial granted 2014. court January that offense limiting intervening legislation based on conviction transportation Code, (c), subd. added & Saf. (See for sale. Health § to transportation reduce the a motion to 1.) court denied defense ch. Stats. by § misdemeanor, however, Brown’s decision because to a section 69 conviction (Brown’s bike injury damage personal flee caused both property car, the officer injured the mirror on the officer’s patrol out” “wiped the relevant Brown). considering After of the contact with hand because factors, years’ felony Brown on three probation the court placed sentencing term as a condition jail probation. 120-day with a suspended guidance as to giving jury further special jury instruction party requested Neither No. 2670 instruction under The CALCRIM force” Graham. what constitutes “reasonable received, however, guidance as to the respect, providing did elaborate in another jury by excessive force with unreasonable or arrestee’s conduct when confronted of an lawfulness arresting ... a while . . . or excessive force peace “If a officer uses unreasonable an officer. herself,” or which is lawfully forсe to defend himself use reasonable person, person necessary reasonably actually degree “that he or she believes defined as turn and “no or excessive force” the officer’s use of unreasonable himself or herself from protect necessary for his or would in the same situation believe person than a reasonable more force objective by to evaluate (CALCRIM But the criteria which No. protection.” her were, from perspective officer’s from reasonable reasonableness—whether arrestee’s— case, jury. in this left
III.
DISCUSSION A. The Instructional Error
1. Issue Presented scenarios, Framing case as choice between two different starkly one officers, Brown, recounted or the other recounted by by the Attorney first, General contends the chose the jury resolving credibility simple so, contest in favor of the officers. That bemay Brown but by responds, assault, to instruct the on the included failing jury lesser offense of simple court never that both gave finding versions of the facts option out, were true. He that even if the partly points believed he example, officers, at the could swung have found the officers unnecessarily initiated the violence on him and him as he jumping beating lay prone the ground, to surrender. Without on which prepared commenting version of *11 events here was the more we conclude that persuasive, Brown’s assignment merit, of instructional error has that the should have been the jury given assault, him and that he option finding guilty simple prejudiced by the error. above,
As noted a violation of can section 69 occur in two circumstances. section, Under that a defendant a commits violation to deter an by attempting officer’s lawful violence or threat duty by of violence. seсtion Alternatively, 69 is violated where a defendant an knowingly resists officer’s execution of (Smith, lawful force or violence. 57 Cal.4th at duty by actually using the Because second for section was the sole ground liability 69 trial, the theory the were instructed that prosecutor pursued jurors they could convict for violation of section if found actual use of force only they or violence. At the of both Brown and the the instructions request prosecutor, the the gave jury finding Brown misdemeanor an option guilty resisting officer the lawful a included during of his duties as lesser performance offense of the section 69 Under this lesser could have charge. charge, jury convicted Brown had it found that Brown resisted officers’ lawful duties, of their even if he did not use violence performance force or (See 148(a).) effectuate that resistance. Brown contends on appeal § should have been an additional him of misde- given option convicting — meanor assault as lesser included offense to a section violation. simple An assault is “an unlawful with a ability, attempt, coupled present Code, (Pen. (section commit a violent on the of another.” injury person § 240).) An “assault does not intent to cause or a injury require specific Rather, occur. assault that an injury might awareness of risk subjective sufficient act and actual of those facts knowledge an intentional only requires result in the directly its nature will probably that the act by to establish v. Williams (People another.” force against of physical application 197].) Brown asserts that a P.3d Cal.4th 790 [111 that he trial evidence by could have been supported conviction for assault where the found the the officers under circumstances force to resist used force, somewhere falling a factual scenario with excessive officers responded in the lot and that of Brown. version of events parking between the officers’ instruction, an but he that he did not assault request Brown concedes on assault as a court had a sua to instruct duty contends that the trial sponte “ long ‘California law has charge. included offense of section 69 lesser a trial and over any objection, that even absent request, party’s provided in “necessarily lesser offense any must instruct a criminal court offense, only if there is substantial evidence cluded” in the charged rule ensures that committed. This venerable instructional lesser crime was within the crimes included necessarily consider all jury may supportable itself, by the most verdict encouraging permitted thus accurate charge rule either party, and the evidence.’ prevents pleadings ‘[T]he [Citation.] inadvertence, choice all-or-nothing from forcing whether by design hand, on the one or complete conviction of the stated offense between verdict, Hence, the charge the rule within encourages on the other. acquittal lenient than the that is neither “harsher more chosen prosecution, [n]or Thus, ‘a if it fails to trial court errs evidence merits.” [Citations.]’ [Citation.] instruct, included offense which find on all theories of a lesser sua sponte, hand, the other the court is not in the evidence. On substantial support ” (Smith, that have no such evidentiary support.’ to instruct on theories obliged *12 239-240.) supra, 57 Cal.4th at pp.
“ ‘ de of review to the failure “We novo standard apply independent included offense. on an lesser assertedly the trial court to instruct by ’ 148, (2015) 233 Cal.App.4th (People Campbell [Citation.]” [Citation.]” 491].) 158 Cal.Rptr.3d [182 Analysis
2. law, in a a offense is included necessarily “Under California lesser offеnse, or the either the elements of the statutory greater offense if greater all the elements of in the include alleged accusatory facts actually pleading, offense, without also that the cannot be committed greater lesser such 108, v. Birks (1998) Cal.4th 117 (People the lesser.” 19 committing [77 (Birks).) 848, P.2d 960 Cal.Rptr.2d 1073]
153 a included offense necessarily whether assault is lesser The question can be the fact section 69 by is somewhat complicated of section 69 A can commit as we earlier. person in two ways, explained violated separate threats or violence to deter or (1) by prevent either by attempting this felony (2) a law or by by knowingly duty imposed an officer from performing an officer in the against the actual use of force or violence resisting through Cal.4th at A (Smith, or her 57 duty. supra, person of his performance necessarily in the first without way attempting apply can violate section 69 Cal.4th 817 (See In re Manuel G. force. physical of offense P.2d can commit first type 880] [defendant deter officer from an officer in an threatening attempt by prohibited § formulation, a can violate of a Under this duty].) person future performance 240, which defines an assault as “an without also section violating section 69 to commit a violent ability, injury with present unlawful attempt, coupled Therefore, concedes, as Brown section 240 is not of another.” person under the elements test. statutory included offense of section 69 lesser test, however, we consider whether the facts the accusatory Under pleading of an include all the elements statutory the accusatory pleading alleged Here, 117-118.) (Birks, although 19 Cal.4th supra, pp. assault. the second of section type was that Brown committed theory trial prоsecutor’s violation, alleged not so limited. It amended information was first to deter or prevent not just by attempting Brown violated section 69 (which can be without his duties accomplished officer from performing with force and violence. the officers force), knowingly resisting but also by with Brown charge used the conjunctive Because the accusatory pleading the statute it to violate section and is violating possible both ways assault, that assault an we conclude committing without way in the second accusatory under the included offense of section 69 was a lesser necessarily Smith, 148(a) 242-243 (See 57 Cal.4th pp. test. [§ pleading charged accusatory offense of when pleading lesser necessarily § 69].) with both ways violating defendant § . . . that this concedes purposes appeal General Attorney “[f]or in the alleged of section included offense necessarily section 240 was instruction contends assault information.” But she nonetheless amended that Brown’s there was no evidence in this case because was not required on lesser included than the crime charged. offense was less “[I]nstructions *13 defendant is guilty only evidence that the ‘are whenever offenses required the jury. consideration” by to merit enough the lesser offense is “substantial “ which a is ‘evidence from evidence” in this context “Substantial [Citations.] ” the lesser . . that could . of reasonable jury [persons] composed concluded Instruc- offense, was committed. but not the greater, [Citation.] [Citations.]’ the evidence raises should be ‘when given included offenses tions lesser offense were present of the charged as to whether all of the elements question [citation], but not when there is no evidence that the offense was less than (People Campbеll, supra, that charged.’ Cal.App.4th [Citation.]” the General contends there was no evidence Attorney Specifically, the could have concluded that Brown committed an from which assault jury without also section She reasons that the was faced with a violating jury 69. evidence, (1) the which crediting choice of either would establish prosecution resisted the officers and that the officers used reasonable that Brown forcibly (2) force or Brown’s which would have established that the crediting story, officers used excessive force and Brown was “completely unaggressive defenseless.” of the record the function of the reading This misconstrues jury “ in the truth ‘Our courts are not halls but forums seeking gambling process. for the of truth.’ Truth lie neither with the defend discovery [Citation.] ant’s of innocence nor with the that the assertion protestations prosecution’s defendant of the but at a between guilty charged, offense these two point extremes: the evidence that the defendant may show of some guilty within, than, intermediate offense included but lesser the crime charged.” v. Barton (People 12 Cal.4th P.2d Thus, 531].) the was not to choose and credit one of fully only required the two versions of November 2011 incident that were to it. For presented could also have concluded that Brown used excessive force example, or violence to resist arrest to the officers’ force. only unreasonable response scenario, Under that Brown could have been found not of the section guilty violation, but still of the lesser crime of guilty assault. General the trial evidence
Alternatively, Attorney argues established that officers used reasonable force as matter of law. that the were Reasoning Sergeant testimony Walle’s established officers entitled to use a level of force that was more than one level above the legally level of force used contends that there is no by suspect, respondent evidence “in the record that would that the officers’ conduct finding support more than one level above that was or that it anything employed [Brown] continued than control of longer necessary gain premise [Brown].” argument this Walle’s admitted —is Sergeant testimony properly —that below, incorrect for reasons we but even had the been explain testimony admission, framed and funda narrowly enough argument appropriate mentally misconceives role of in a case of this testimony proper law, define, nature. Such can be a matter what never used to constitutes reasonable force or to decide whether it was used in a objectively given case. have, hand,
As we have could on the one believed posited, Brown’s that he did not resist before he fell or was officers *14 while Moody Officer by and slugged tackled and was then his bike off
pushed that scenario to surrender —a and ready unresisting ground, on the facedown could The jury excessive force. due to the arrest unlawful have made would Brown that hand, officers’ the have still, accepted other on the the them, officers. If both striking at swung and repeatedly wheeled unreasonable, have supported that would Brown’s reaction that concluded aby is used defendant excessive conviction. “[W]hen an assault be [may] defendant officer . . . aby police excessive force to response of section be a violation convicted, may only and the crime then section,” within that offense included necessarily (a) or of a lesser subdivision 161, 168 Cal.Apр.3d [161 v. White (People as section 240. such 138, 145 (1981) 122 accord, Cal.App.3d [175 541]; v. Castain People Cal.Rptr. his duties of within acting scope is not the officer if Cal.Rptr. 651] [“even of force, be guilty simple still the defendant use of excessive of his because in his counsel force”].) argued As Brown’s with excessive if he battery responds swinging force in used unreasonable brief, that Brown found if the jury opening rather assault “simple for conviction have supported it would officers view of That under section 69. conduct to lawful police resistance forcible than on both of force excessive use i.e., improper that there was the facts — Thus, we the evidence.” of interpretation the most frankly plausible sides—-was assault regarding instruct the jury to failing by the trial court erred that conclude charge. section 69 of the offense included necessarily lesser as a “ ain a lesser included offense sponte to instruct sua failure ‘[T]he alone, thus law most, is, error of California an case noncapital state Under reversibility.’ of [Citation.] state standards to only subject an unless reversal subject standard, ‘such misdirection that a reasonable probability establishes entire record of the examination has emphasized Court Supreme ‘The outcome.’ error affected the [Citations.] not, but than likely mean more context does not in this a ‘probability’ “that chance, possibility. [Citations.]” than abstract more an a reasonable merely ” 165.) Under at p. Cal.App.4th (People Campbell, [Citation.]’ the outcome the error affected test, probability a reasonable we find this trial and theory at defense was a primary excessive force case. The use this error instructional But it. to support evidence was substantial there force, while excessive used officers finding from the jury precluded in a manner at the officers swinging of assault Brown convicting A “jury or not. cause them, injury he intended whether injured have could be might offense lesser included defendant of convict a an option without that established than greater an offense the defendant to convict tempted (2014) v. Eid (People rendering acquittal.” instead evidence 69].) P.3d 658 Cal.4th evidence, draw to scrutinize Furthermore, a readiness showed this convict level of culpability, Brown’s conclusions its independent own *15 156
on lesser than the charges prosecutor requested. jury convicted Brown of a lesser included on the offense drug charge, for which is an example, indication that it had doubts about the case prosecution’s which also might have affected its of the resolution section (See 69 charge. v. People Mullendore (2014) 848, 230 857 Cal.App.4th Cal.Rptr.3d leading [179 jury 7] [doubts convict defendant of lesser offense of one could have charge led to a similar result on another charge which it was not that given Brown option].) contends that the jury convicted him of simple possession rather than for sale because it had possession doubts about the of the officers’ credibility that story Brown the threw of bag cocaine rocks under the car. parked Alternatively, verdict may indicate that the drew jury different conclu- from sions evidence about of possession cocaine for sale than the event, had intended. In prosecutor any the could have jury had similar doubts about the above, section As charge. 69 discussed that, the defense argued even though arrest, Brown have used force to resist the officers overreacted and administered a beating that was unreasonable excessivе. The instructional error precluded from deciding whether to credit the substantial evidence supporting this theory.
The Attorney General’s only harmless error argument is instruc tional error did not affect the outcome because “in convicting of [Brown] violating section 69 the showed it rejected claim of excessive [Brown’s] found that the level of force used officers atwas all times reasonable.” But in assessing does prejudice, “it not matter that the jury chose to convict the of the defendant greater offense over or that the acquittal defendant was convicted of the greater offense on sufficient evidence.” v. (People Racy (2007) 1327, Cal.App.4th 455].) To Cal.Rptr.3d [56 hold otherwise would undermine the very of the sua purpose rule. sponte v. (People 142, 178, Breverman 19 Cal.4th fn. 870, Cal.Rptr.2d [77 P.2d 1094].) It clear, does however, seem abundantly Attorney out, General that the points found that Brown swung his fists at one or more of the officers during course of the arrest. Whether (or these blows blows) not, attempted were effectual or we find substantial evidence to an assault support conviction. “When a greater reversed, offense must be but a lesser included affirmed, offense could be we give the prosecutor option offense, retrying greater accepting reduction to the lesser offense.” v. (People Kelly (1992) 1 Cal.4th 385]; 528 Cal.Rptr.2d 822 P.2d [3 see People Hayes (2006) 142 Cal.App.4th 695].) remand On we will provide prosecution with the option retrying section 69 charge assault, with a along charge simple subject guidance provided below in III.B. part Force Police Use Testimony on Expert
B. Admission Testimony Expert Admission Governing Principles 1. *16 Generally testimony of admissibility expert ruling court’s trial
We review Southern University Inc. v. Enterprises, (Sargon abuse of disсretion. for of 614, P.3d 747, 288 Cal.Rptr.3d 1237] 773 (2012) 55 Cal.4th [149 California been described has abuse of an discretion constitutes A that (Sargon).) ruling “ could reasonable person that no arbitrary or is ‘so irrational one that as “ ” ‘The is not unlimited. discretion {Ibid.) But the trial court’s it.’ with agree i.e., in law being applied, particular resides always of discretion scope . .” Action that action . . of the subject [the] the “legal principles governing outside the of law is principles of the applicable the confines transgresses discretion. “abuse” action an of call such and we discretion of scope discretionary of the subject that govern . . The legal principles . [¶] [Citation.] from the are derived They context. with greatly [Citation.] vary action To conferred.’ discretion is [Citation.] under which law or statutes common discretion, legal consider ‘the thus we must abused its if a court determine ” (Ibid.) court’s actions.’ guided that should have and policies principles are testimony of expert admission governing of law The principles “ knowledge, with “special law person permits ‘California well settled. as an to field qualify in a education” skill, particular training, experience, ” of opinion.’ form an in the testimony give . . . and to witness expert 373, 262 P.3d 1038, Cal.Rptr.3d 1044 v. Vang (2011) 52 Cal.4th [132 (People “ of 720, Code, 801.) ‘Generally, opinion omitted; Evid. 581], §§ citation sufficiently is that to subject it is when “[r]elated is admissible an expert assist the would opinion that the common experience beyond 755, 207 Cal.App.4th Tracy (2012) City v. fact"'" (Allgoewer trier of 801, Code, (a) subd. Evid. § see (Allgoewer); Cal.Rptr.3d 793] 761 [143 beyond sufficiently that is a subject to be must “[r]elated [expert the trier of assist would of an expert the opinion common experience “ ‘ the expert as However, competent is as just fact”].) “[w]here conclusions, then necessary draw evidence and weigh consider ’ ” at (Allgoewer, p. testimony evaporates.” the need “ ‘ at all add nothing “when it would be excluded will Expert i.e., information, inquiry ‘the subject when common fund jury’s education ordinary men women] knowledge [and common one such ’ ”” v. Jones (People the witness.’ as intelligently as a conclusion could reach 383, 496].) P.3d 275 1, Cal.Rptr.3d (2012) 54 Cal.4th 60 [140 158
Some are topics off-limits categorically (See expert testimony. Code, §§801, (b) Evid. subd. to admissibility [caveat where “expert law precluded by from such using matter as a basis for his opinion”], state [expert may basis for he is opinion “unless precluded by law from using such reasons or as a matter basis for his For opinion”].) are example, juries to decide such competent things as witness credibility (2004) v. Wells (People 118 Cal.App.4th 762]), Cal.Rptr.3d [12 defendant’s guilt or innocence v. (People (1995) Torres Cal.App.4th Cal.Rptr.2d [39 103]), or (id. whether a crime has been committed at 47), p. without expert assistance in all circumstances. such as Similarly, topics the definition of a (id. crime (id. 45-46), the pp. meaning of statute 46), or other matters of law even if disguised about opinions (.Benavidez ultimate facts San Jose Police Dept. Cal.App.4th 157]) *17 always lie beyond role of proper an expert.
2. Civil Cases Addressing on Expert Testimony Excessive Force
Issues The use of excessive force by law enforcement officers is analyzed under the Fourth Amendment’s objective reasonableness requirement a seizure of the (Graham, person 388, supra, 394-395; U.S. at pp. Brown v. (2009) 516, Ransweiler 171 Cal.App.4th (Brown)), 801] and arises in usually one of two here, contexts: defensively, as when an accused seeks to defend against charge resisting arrest similar offense contending arrest was unlawful due to the officer’s use of excessive force, and (2) when a offensively, person who claims tо have been the victim of excessive force lawby enforcement sues for damages under 42 United States Code (section section 1983 1983), or similar state law remedy. specific question admissibility of on expert testimony use of force in the of these first situations has not been Rather, in resolved California. the few cases shedding any this light question, elsewhere, in California and arise context, in the civil under usually section 1983. Because the rules of evidence governing expert testimony California, states, in in other and the federal similar, are courts broadly at here, least insofar as is material it is worthwhile our preface analysis of this issue of first with a impression review of the civil pertinent precedent decided by courts nationwide.
Summing up state of the law across country, one commentator that, recently observed although some courts allow excessive force expert “a testimony, larger number of courts held that have it is not or not required (Annot., for, admissible.” of, Requirement and Admissibility Testi- Expert mony to Determine Whether Use of Particular Amount of in Course Force Making Arrest Was Unreasonable (2015) 641, 649; 95 A.L.R.6th see id. at 3-10, pp. §§ 652-705 cases].) view, [collecting Illustrative of the majority noted, Allgoewer, supra, Cal.App.4th commentator
this of excessive on issues case to address expert California leading here, as a Allgoewer serves helpful not directly applicable force. Though our analysis. entry point of the Allgoewer officers visited the home plaintiff two
In Allgoewer,
police
wife that he was keeping
from
former
Allgoewer’s
to investigate
complaint
(Allgoewer, supra,
of a child
order.
custody
son in violation
the couple’s
while
758.)
talking
became
Allgoewer
agitated
at p.
Cal.App.4th
that he had bеen using.
a hand rake
and refused to
yard,
drop
officers in
twice,
him
and
“Tased”
(Ibid.) The officers
ground,
forced him to
him,
his wrist
while arresting
breaking
behind his back
wrenched his arms
(Id.
758-759.)
In
and
pp.
in his shoulder
bicep.
muscles
tearing
force,
the defense
excessive
the officers for
against
civil suit
Allgoewer’s
testimony, drawing
analogy
that he was
argued
required
present
found the
(Id.
762.) The trial court
cases.
at pp.
to medical malpractice
(Id.
Reversing,
nonsuit motion.
granted
argument persuasive
Graham,
U.S.
discussion of
court
with
brief
began
the appellate
involving
force case
Court excessive
United States
leading
Supreme
Graham,
in a case such as this is
...
the question
force. “Under
non-deadly
arrest was
making
force the officers used
the amount of
whether
(Allgoewer,
faced.”5
they
the circumstances
unreasonable given
objectively
*18
directly
no California
763.)
at
Finding
precedent
207
supra,
p.
Cal.App.4th
that a
to establish
“[wjhether
necessary
is
testimony
addressing
expert
(ibid.), the court
unreasonable”
was objectively
amount of force
particular
cases,
Kopf
v.
on three
focusing
authority,
canvassed
out-of-state
pertinent
City Chicago
(7th
Thompson
v.
(Kopf),
1993)
F.2d 374
Skyrm
(4th
Cir.
993
of
Allis
(2000)
City
and Robinson v.
West
(Thompson),
F.3d 444
2006)
Cir.
472
(Robinson). (Allgoewer,
595,
N.W.2d
Wis.2d
619
Notably, precise legal addressed in question Allgoewer —whether is from expert testimony the in a civil required plaintiff excessive force on a case—turns standard that differs from the significantly standard govern such ing whether is admissible. testimony For testimony to be expert admissible, it is not that necessary the the subject of lie wholly beyond that, the of the understanding but average juror, even if the merely average has some juror knowledge of topic, expert might improve or refine the upon jury’s common fund of informatiоn.6 In cases where expert contrast, testimony is required, by witness have must degree that specialized knowledge within the peculiarly province Of experts.7 mentions, the three out-of-state cases Allgoewer only Robinson addressed the of whether question expert required. Finding persuasive “ Wisconsin observation in Robinson Court’s Supreme cannot at ‘[w]e once emphasize jury’s responsibility the standard applying of reason ” ableness also claim that the issue is beyond jury’s comprehension,’ Allgoewer rejected the argument testimony is in an required “ excessive force case. (Allgoewer, supra, ‘Re Cal.App.4th ” quiring force,’ of use of prerequisite finding excessive “ reasoned, the court ‘would remove essentially from task of standards of applying reasonableness and it with the task of replace evaluat ” (Ibid.) ing testimony of the parties’ experts.’ Allgoewer and Robinson both involved force that was primarily physical nature without the use of law weapons special enforcement tools. The Allgoewer officers threw the arrestee to the ground and wrenched his arms behind his back (Allgoewer, 758-759), Cal.App.4th and the pp. *19 officers in Robinson the punched arrestee and slammed face his and to body (Robinson, the ground supra, 696). 619 N.W.2d at the Having rejected notion that there is any se rule per requiring the courts in expert testimony, both cases went further and determined there was no “need” for case-specific 6People Dejourney (2011) Cal.App.4th (“Because 192 1110 [121 787] admissibility expert opinion a question degree, is and a wholly ignorant need not be rule, subject of the matter statutory under the only necessary exclusion is opinion where the nothing would add jury’s information.”). at all to the common fund of 7 Angeles County Miller v. Los Flоod Control Dist. 8 Cal.3d Cal.Rptr. (“If 505 P.2d the matter in issue one within knowledge only 193] is the of experts and not within the knowledge laymen, common necessary it is plaintiff the to introduce expert opinion evidence in order prima italics)); to establish a (original Allgoewer, facie case.” see supra, Cal.App.4th pages 761-762. the Court Supreme put As Wisconsin on the facts testimony presented.
expert Robinson, the the officers’ indication that reasonableness “there is no it in One need not necessitate an expert. so as to involves matters complex actions in an effectuating a use of force whether reasonable an to determine be expert a landing punch face to ground an arrestee’s the smashing includes arrest will have with this case lies difficulty head. . . . The the side of his to in as it finds them but standard to facts the the in reasonableness applying (Robinson, supra, the by parties.” facts presented untangling disputed into whether excessive 700-701.) secondary This inquiry N.W.2d at pp. to roughly analogous the facts on presented was “needed” expertise of the knowledge add to anything will testimony proffered whether and Robinson— Allgoewer the root in but because question average juror, it should be versus whether mandatory be should whether here, and Thompson Kopf, the one presented from admissible —-differs relevant to this Allgoewer, directly are more two cases discussed other Kopf admissibility. address Thompson Both and case. take drug buy was saw what they suspected two Thompson,
In officers and a who man Mustang of a black parked between the driver place and then tried to for a few blocks Mustang tailed the They him. approached over, then at first but The Mustang pulled for a stop. it over traffic pull and several others the officers leading to get away, and tried suddenly sped up the Mustang ended with chase that them on high-speed joined who crash, where at the scene of officers arrived seven crashing. Eventually, inches, 330 car, got feet two pounds, six of the Thompson, the driver James him, their efforts arrest resisting car and began aggressively of the out and tackled to the ground, with his fists. Thompson at them swinging officer, facedown, sat on back Officer Hespe, one on the ground while The chokehold, officers handcuffed him. while the other in a him placed death. and he suffocated air passages, Thompson’s chokehold collapsed under civil suit 447-448.) ensuing F.3d at In (Thompson, pp. indi- officers, as an remained only Hespe Officer against section trial, in limine moved the defense the case went to defendant when vidual experts proffered two to trial to exclude prior have would opined the experts According plaintiffs’ proffer, plaintiffs. a chokehold and used training not adhere to his did Officer Hespe 449-450.) (Thompson, pp. use-of-force policy. of his department’s violation limine, testimony. and excluded the motion in trial court granted noted Court of Appeals the Seventh Circuit ruling Affirming appeal, Graham, regard with that, ‘reasonableness’ constitutes under “What the Fourth Amendment under suspect actions in apprehending officer’s *20 ‘ but “requires or mechanical application” definition “not capable precise case of each particular and circumstances attention to the facts careful Graham, at supra, 490 U.S. quoting 472 F.3d at (Thompson, p. 396.) The court then looked to p. Whren United States 517 U.S. 1769], 815-816 L.Ed.2d 116 S.Ct. where the United States Supreme Court the use of rejected manuals and standard police to evaluate procedures what a “reasonable officer” would do under the Fourth Amendment in the Whren, context of a traffic stop. Summarizing observed that Thompson rules, “police regulations from practices vary and from place place time,” result, time to and as a “are an unreliable gauge which to measure and/or objectivity reasonableness of conduct” under the police Fourth Amendment. 455.) at (Thompson, supra, p. Accordingly, con- Thompson cluded, “Introducing two experts testify Officer used excessive Hespe force would have induced the to substitute jurors their own independent (Id. conclusions for of the at 458.) experts.” p.
Kopf force, was another case involving use of various forms of physical which included case, the use of a trained In that police dog. a man and a woman, Anthony Casella and Tammy were in the Obloy, suspects robbery a them, A team pizza car, then, officers parlor. police chased at first by foot, on eventually, to them in an catching up area behind a garage, where the tried to hide in a suspects narrow between two passageway buildings. officers released a into the police dog where it mauled passageway, both Casella and Obloy, cries from despite Obloy not to let the attack her dog because she was pregnant. The officers eventually out dragged suspects the passageway, that, with the dog to bite at Casella. continuing testified They once Cassella was freed from the he at them. In passageway, lunged response, an officer struck Casella in the times head with a multiple until it flashlight broke, and then with a Casella suffered slapjack. lacerations from the multiple bites and dog brain permanent injury from the blows to head. (Kopf supra, 375-376.) 993 F.2d at At the trial of a pp. section case subsequent brought by Cassella’s (he had personal since died in representative incident), unrelated the officers testified that in the arrests making they simply rebuttal, followed their In training. the plaintiffs sought to offer the expert of a officers, use-of-force who that the proposed testify fact, violated use-of-force departmental and did not policy follow their 376-377.) training. {Kopf pp.
The trial court excluded the and on plaintiff’s expert, of the appeal panel Fourth Circuit Court of reversed. Appeals (Kopf supra, 375.) 993 F.2d at p. The court of faulted the trial court appeals what applying to be appeared “a blanket rule that expert testimony generally inappropriate excessive (Id. force cases . . . .” “The facts of every case will determine whether assist the Where force is reduced jury. to its w[ill] most form—the bare primitive not be expert testimony might helpful. hands— handcuffs, mace, Add tool, gun, slapjack, some other and the jury may start to ask itself: what is mace? what is an officer’s training using gun? how much can a damage do? these often slapjack Answering questions *21 A is a more tool than a testimony. dog
be assisted by expert specialized [¶] How to train a to sit or roll over is not everyday or gun poodle slapjack. be an in a case where it was by and could knowledge explained expert (Id. are even more obscure relevant. How to train and use a skills.” police dog used, at each 379.) at with close court Looking scrutiny type p. found it was an abuse of discretion not to allow expert testimony concerning the officers’ and use of because these tools training police dogs slapjacks (Ibid.) involved to warrant enough special knowledge expert explanation. (Hygh), v. Jacobs (2d 1992) Cir. F.2d another civil excessive Hygh to a is relevant here well. force case blows involving physical suspect, There, conduct, of an Officer Jacobs disorderly course arrest face, in the three cheekbones. Jacobs fracturing William slugged Hygh (Id. 361.) claimed he hit with fist in self-defense. at At trial in a Hygh p. force, section for excessive use of seeking damages Hygh 1983 case pre- sented a medical who based on the extent of the injuries, expert opined, (Hygh, Jacobs struck with “a blunt instrument of some sort.” at Hygh p. Since Jacobs admitted he was also carrying flashlight night, Hygh a law enforcement who testified that if Jacobs used the presented expert fist, to strike rather than a the extent of force used was flashlight Hygh unreasonable the use of such a blunt instrument met the because objectively “ ” (Id. 361-362.) force.’ at On legal ‘deadly definition physical pp. appeal from a verdict in favor of the the Second Circuit Court of jury Hygh, plaintiff matters, held that it was error to to address legal Appeals permit expert decide the even he did not tell the how it should case. though directly conclusion legal “Even if a were not misled into adopting outright held, witness,” “the would remain the court by expert proffered objectionable by communicating legal explicit implicit standard- — —to be by Whereas an jury. expert uniquely qualified experience [Citations.] fact, with the in the judge to assist the trier of he is not qualified compete end, however, (Id. 364). In the instructing function of jury.” trial court had instructed court affirmed. After that the observing appellate addressed, and that the difference on the same matters Hygh’s expert “not between the version of law and the trial court’s was substantial” expert’s (ibid.), court found the law enforcement was expert’s testimony appellate admitted, that the but it did remark although erroneously prejudicial, (id. 365). is close” “question pp. 364— others, than each of
While of these cases are more directly some applicable Robinson, Allgoewer, Broadly them is to some instructive. degree speaking, in civil excessive Thompson Kopf all view the utility frame, frame of reference. Within that force cases common through much on the correct is case case and analysis very dependent particular used, force is the less likely facts but in where general, only bodily presented, to the common something it will be that an excessive force will add *22 the ultimate that to its task. Since issue knowledge every jury brings store of decide under Graham is whether the conduct is challenged for a reasonable, of officers—which focuses training objectively particular were handle the situation they they on how subjectively predisposed -is, best, whether a relevant. What counts is only marginally faced— officer, circumstances, have faced with the same set of would reasonable that, of action. adds the refinement even where Hygh chosen the same course the ultimate issue for decision aby jury, legal an does not address expert what constitutes reasonable conduct must come from objectively on guidance the trial not from the judge, expert. Analysis
3.
a. The Threshold Issue Form of General at oral Attorney acknowledged argument testimony expert on the of on a section from the issue excessive is “unusual” prosecution unusual, here, It indeed and was both for the substance offered charge. is and the in it In the testimony, which was course his way presented. that, at one the offiсers’ version of events taking Walle Sergeant opined point true, conduct, as Brown had in “assaultive” the force the engaged justifying in but for the his as testimony officers used most response, part presented a overview of the law and the “defensive tactics” course general applicable all in the tutorial was that he teaches to officers RPD. The this purpose never made clear to the but the did to the court— jury, prosecutor explain not to the she was concerned could though jurors “get wrong —that a about tactics these officers to subdue impression” aggressive employed “[Wjhen old: there’s a with more than one fleeing year struggle, especially officer, can that . . . juries get wrong they’re ganging impression up him,” and when . . . then followed “there’s knee strike to ribs which is blow, which is can seem . . . by essentially distraction punch, [¶] [¶] excessive. But are trained to use . . . these . . . tactics to someone they get under control.”
The Evidence Code presentation testimony presupposes expert effect form of reasoned That has the opinions.8 salutary ensuring (a) (“If testifying expert, Evidence an his See Code section subdivision witness is testimony opinion” “sufficiently beyond opinion in the form of an is limited to such an as is added)); (italics opinion that the an the trier of fact” experience common would assist (b) testimony be “that (expert Evidence Code section subdivision must based on matter reasonably may by forming opinion an type upon upon of a be relied (italics (“A added)); subject to which his relates” Evidence Code section 802 witness testifying opinion may opinion in the form of an state on direct examination reasons for based, by using precluded and the matter . . . which it he is law from such upon unless opinion. that a require reasons or matter as a basis for his The court in its discretion which not allows the foundation for an degree logical rigor, only
some (see to be screened for reliability Sargon, supra, expert’s opinion properly law, Cal.4th at California trial courts have a substantial [“[u]nder to screen expert testimony admissibility]), ‘gatekeeping’ responsibility” screen, but once that threshold its past helps keep presentation focused on matter circumscribed its rationale for admission.9 The subject form of here observed no such boundaries. Even it assuming was presentation for the Walle’s in the Sergeant form proper prosecution present *23 here—-no been on that having we see objection interposed ground—the the should have substance of nevertheless been excluded. Because testimony (i) added testimony Walle’s to the common fund of Sergeant nothing that would have to the (ii) information room and any juror brought jury he, essence, law, the in addressed invited the to inaccurately governing jury decide the abdicate its to issue of excessive force based on an erroneous duty of the law. Brown’s motion in limine understanding seeking exclusion should therefore have been testimony granted.
b. Specialized Knowledge
here,
For the
to
out what
was not
jury
knowledge
sort
happened
specialized
“force . . . reduced to
Because these officers used
its most
required.
primitive
379),
form—the bare
F.2d at
this was not a case
(Kopfi supra,
hands”
993
p.
in which the
of some
law enforcement tool
handling
(e.g.,
proper
specialized
Mace,
Taser,
be
a
a
had to be
It
to
gun, dog,
spray)
explained. may
pepper
testifying
opinion
concerning
before
in the form of an
be first examinеd
the matter
witness
(italics added)).
opinion
upon which his
is based.”
9
cases,
Appeals,
A
of federal
both from the Sixth Circuit Court of
illustrate the
pair
testimony
importance
ensuring
“gatekeeping” stage
proposed
police
at the
from
Berry
expert’s qualifications.
In
practices expert
specifically
focused on matters within
(6th
City
1994)
(Berry),
plaintiff
Detroit
Cir.
reaction is left to the so jurors precisely the and their own values to bear on the of whether question experience . have excused the violence. . . While courts frequently provocation partially or as a matter of categories held certain of provocation adequate inadequate law, the is to leave the free to norms tendency jury community modem apply Psychologists, sociologists to the question. psychiatrists [Citation.] [¶] the of reactions to regarding range have empirical knowledge specialized the . . . information assist materially this would given provocation, [b]ut task; ordinary determine not if the reaction is only in its must jury jury (Czahara, if it . . . .” 203 Cal.App.3d p. but is reasonable held, reasonableness, more The ultimate determination of the court “depends than knowl- unarticulated) any norms” on community empirical (perhaps Burton v. Sanner (Ibid.; (2012) 207 could have see edge expert supplied.
167 12, (Burton) 14 Cal.App.4th Cal.Rptr.3d [expert “usurped [142 782] role” where test of reasonableness” on an issue jury’s of self-defense “[t]he was “an one and “it objective for as jury” just competent conclusions”].) to evaluate the evidence and drаw here, it was for a Similarly, important reasonableness apply determined standard its common Once the using knowledge. that some Brown, use of force was its task appropriate subduing was to determine whether these overreacted officers circumstances. To guide assess ment, Graham down a broad lays test certain highlighting factors consideration, all to be viewed from the of the officer in the field. standpoint (Martinez Los 334, County Angeles (1996) v. 343 Cal.App.4th [54 “ however, 772].) At the end of the day, test of reasonable ‘[t]he ness under the Fourth Amendment is not definition or capable precise (Graham, 396, mechanical ....’” supra, U.S. at application quoting Bell (1979) 441 U.S. 1861].) L.Ed.2d S.Ct. It [60 Wolfish test, situational and fact highly and in specific, task applying jury’s not only but it to its own permitted required sense of apply independent reasonableness, whatever using norms members community might bring to the issue. on the Law
c. Expert Testimony “There are limits to not the least of testimony, which is against admission of an on a of law.” prohibition expert’s opinion question (Summers v. A. L. Gilbert Co. Cal.App.4th 162].) Embedded in *25 Walle’s overview of his Cal.Rptr.2d Sergeant mandatory “defensive tactics” course was an of the training governing law. explanation examination, At the start of Walle’s of Sergeant series prosecutor posed law, him, direct about “What does the law state is a questions asking reason for an officer to use force?” is reasonable force defined?” “[h]ow Walle that the for an of force Sergeant legal officer’s use responded authority is of the Penal Code” and that RPD all officers are explained given “[835a] Graham v. Connor.10 founded on training Attorney argues preserve any specific objection The General that Brown failed to to “ Sergeant testimony apрeal Walle’s about the law. But in which the ‘a this is not case raises ”
wholly (1988) objections. (People than the basis of exclusion’ trial v. Williams different 883, 907, 336, 395].) Cal.3d Cal.Rptr. objected Sergeant fn. 6 751 P.2d Brown to Walle’s [245 testimony entirety, support objection argued Sergeant in its and in of that he that Walle’s testimony contained specialized province jury. no content and invaded the of the Because the prejudicial impact Sergeant testimony objections of admission of Walle’s over these of —both law, testimony grounds which were well up taken —was bound with his for objection by “fairly specific asserted Brown were sufficient to inform the trial court... of the objecting (People reason or reasons the party believes the evidence should be excluded.” 765].) Partida 37 Cal.4th 122 P.3d the jury, Graham of understanding Walle then summarized Sergeant one of the mentioning only explanation, partially a truncated but provided taken into account held should be Court the Supreme three factors or flee- resisting is actively the suspect reasonableness —whether assessing one, and repeatedly the test objective mentioning ing —never in the of to yourself supposed put shoe[s] says you’re “the law emphasizing and ever . . . because it fluid of the incident at the time an officer address Graham. As in this case did not instructions The jury changing.” 2670, which CALCRIM No. above, using the jury the court instructed noted or detain reasonable force arrest officer use may that “A advised it peace self-defense,” resistance, but someone, to overcome escape, prevent to use in the criteria for the that, jury it no instruction gave explaining beyond Sergeant supplied “excessive” force. Walle “reasonable” from distinguishing issue, and the two Graham on this crucial lеgal guidance the jury’s only was being for which the suspect of the crime severity he omitted —the factors both posed of the threat immediacy suspect and the sought, —were here. important potentially the law only Walle discussed Sergeant out that General Attorney points
The have been testimony may background explanation. briefly, by way on it. brief, focused Clearly, Perhaps it was but powerful. on this key of legal guidance had no other source since surprisingly, the trial where an echoed to Hygh, merely contrast legal issue — deliberations during asked for read-back court’s instructions —it officers, specifi regarding training police Walle [Sergeant] “testimony . . . i.e. vs excessive strikes and reasonable regarding cally compliance Thus, added.) (Italics than his entire other introduction.” need his to decide advise the Walle did not in terms how even though Sergeant issue, standard for it with legal he did manage provide the ultimate knowl decision, a source legal with vesting authority himself thereby this sort in Hygh, with edge. Summing up problem the jury “The danger is Circuit Court of Appeals explained: the Second knows more branch of the law in the think that the ‘expert’ particular of law.” (Hygh, inference in our system an inadmissible than the judge surely— Co., v. Diners’ Club Inc. (2d Cir. Marx & Inc. citing F.2d at p. 505, 512.) 1977) 550 F.2d *26 Burton, 12, which also involved police supra, in 207 Cal.App.4th As “ as ‘pain such matters training (including use-of-force testimony
expert’s “ ” ”), essentially “the force court and the ‘use of continuum’ compliance’ legal view of instruct the on his jury applicable to [Sergeant allowed Walle] (Id. . . . .” at standards, to do so even he though unqualified and is principles Burton, Walle “has impressive in 23.) Sergeant Like his counterpart p. (Id. RPD. at p. with authority figure” educator and credentials as an tactics,” use Indeed, proper on “defensivе addition other officers training
169 like, of and the “pain compliance” techniques, Walle was an Sergeant in the internal affairs unit and investigator sits on currently RPD’s use of board, where he evaluates the reasonableness of RPD officers’ actions credentials, on a basis. In view of those day-to-day the jury had reason every to look to him as a far better than could be of the judge they reasonableness of those officers’ tactics. was, course, of entitled to prosecutor ensure the understood jury will range virtually be of conduct always that is reasonable”
“[t]here “ ‘ (Brown, 537, supra, 171 at italics), Cal.App.4th p. original and that “[t]he Court’s definition of Supreme reasonableness is . . . ‘comparatively generous ” ’’ (Id. at 528, to the City Union police-’ p. quoting v. [Citation.]’ Munoz of City (2004) (Munoz), 1103 Cal.App.4th Cal.Rptr.3d [16 521] Hayes on other grounds County San Diego disapproved Cal.4th 622 252]), 305 P.3d but if she wished these she was entitled to do emphasize points, fully so by requesting special Graham factors and then instruction on the on that instruc- elaborating tion in closing argument.11 While counsel expected argument present law, read, so, anchored in the the fact that an fairly does and does so law, based on an inaccurate rendition of the an indication he has improp- Burton, outside erly (See his role as to the fact finder. stepped adjunct and Cal.App.4th p. [reversing finding where miscarriage justice an tried to do what an advocate could not and testified that improperly him, “he turns down most court cases offered to and he takes a case if only he ‘wholeheartedly ”].)12 in the case itself’ truly believe[s] Invasion the Province the Jury
d. that Officer Walle did Emphasizing not on the ultimate issue opine reasonableness, General Attorney out “it was still points up to decide whether the officers’ actions in this case conformed to their training” and that verdict jury’s ... it found that the officers’ suggests “[t]he 11Munoz, supra, (“The Cal.App.4th p. quotation directing that the test hindsight, of reasonableness ‘is not one necessarily of 20/20 but one which allows for fact police are split-second officers often forced to make decisions in circumstances that are tense, uncertain, rapidly evolving with the necessary’ amount of force which is was taken directly from case law Although and is correct statement of law. appropriate [citation] court, nothing wrong instruction from the there was part closing with these statements as argument.”). 12This the open-ended Sergeant testimony illustrates how form of much of Walle’s created Sergeant other problems. obviously Walle qualified was not and could never have been as an expert in the law. But presented way because his was not in a that ensured he would only address a “discrete area of police practices specialized knowledge” about which he had 909; (Champion, supra, ante), managed beyond 380 F.3d at see fn. he to roam his by folding demonstrated area of expertise training on the law into his course tutorial. *27 of the issue is Her training.” framing with their consistent force was use of the officers were never contested that the defense to one side Putting telling. the should trained,13 testimony highlights why line of argument this properly It concedes the excluded, have been admitted. it should why not have been of Sergeant the true purpose for exclusion—that Brown’s argument thrust of they about control techniques not to educate testimony Walle’s but instead to suggest understanding, have had difficulty otherwise would themselves “by and conducted that, Moody Ricchiuto because Officers did was what training, they sanctioned book,” with legally in accordance effect, Sergeant Brown argues, of the law. In within the bounds therefore of excessive to avoid the question was an invitation Walle’s did as were trained they the officers it with whether conflating altogether by correct, view. He is in our to do. could have that the training also contends
The General Attorney actions were that the officers’ “if the found cut both since ways, that the tend to the argument it would training support with their inconsistent can training regimen But the idea that RPD’s unreasonable.” force used was for reasonableness —available Fourth Amendment benchmark serve as a valid training that officers’ argue premise for either side itself —rests as a matter of law to doubt that premise We have no reason is reasonable. the court jury, opened the issue before but by placing enforcement policy, and As confusing.14 distracting that was potentially a line of inquiry up limine, “Whether motion in of his support counsel issue put Brown’s action make necessarily physical trained this or not doesn’t way the officers are was for the jury Amendment purposes Reasonableness for Fourth reasonable.” Moody encounter with Officers on the facts of Brown’s to decide based Ricchiuto, for it. Presented with as a training proxy officers’ by using Moody and Ricchiuto were was not that Officers closing argument, Brown’s contention In him a they perceived when they but that made mistake poorly incompetent, trained or defiance, threat, up him in retaliation they to the situation and beat that overreacted up their mistake. swinging at them was fabricated to cover testimony about him that their involving high controversies use profile wake of a series of points Brown out that in the country, of law enforcement a number parts officers in different police of force (See Long Rethink training. Apuzzo, Police adopted to their use-of-force agencies have reforms Note, A1; Shocking Force, 2015) (May see also Using N.Y. Times Tradition on (2011) Abuse Lasers and the Need Use and Truth: Law for Reform Enforcement’s Training Center the Federal Law Enforcement [pointing out that Vill. L.Rev. 384-385 continuum, has made the use-of-force (FLETC), training developed the national institute continuum, “directly with” that, it conflicts nature of the because of the formulaic clear “ capable is not the Fourth Amendment ‘reasonableness under conception Graham’s ”, result, away with FLETC has “done and as a application’ definition or mechanical precise materials, although many law enforcement training in its own the use-of-force continuum” training programs.].) their country form of the continuum in agencies still use some around
171
here,
Thompson
the same line of
General makes
the
argument
Attorney
court
“It
be that” adherence to local
rules
be of
may
training
might
explained;
decisions,”
to those
or
but “that
“making
salary
interest
discipline, promotion
(Thompson, supra,
was immaterial” in this trial.
472 F.3d at
information
455.) Because
to address the issue of
introducing
training
p.
expert
their own
conclusions for that
“induced
to substitute
of
jurors
independent
458),
(Thompson, supra,
472 F.3d at
the court excluded
p.
expert[]”
about officer
as more time
than
testimony
training
confusing
consumptive
Evidence,
U.S.C.;
(28
under Federal Rules of
rule 403
the federal
probative
Code,
(Thompson,
352)
453).
at
to Evid.
counterpart
§
The balance of
value versus
to confuse and distract
potential
probative
illustrates a
difference between this casе and the civil cases
key
addressing
of
from a
on excessive
admissibility
training
police
In
of relevant
matter
general,
subject
issues.
scope
implicating
of excessive force tends to be broader
in civil cases than it is in
issues
cases,
result,
criminal
and as a
value of
from an
probative
cases,
excessive force
there. In section
for
stronger
1983
typically
the contested issues
include an officer’s
faith as
of
may
good
part
example,
defense,15
based on
excessive use
immunity
agency liability
alleged
qualified
or
under a
liability
of force
to official
pursuant
policy,16
supervisorial
claims,
And in
law tort
deliberate indifference
connection with state
theory.17
claims,
of an officer’s
which
section 1983
scope
frequently accompany
or others18 or the
defenses of
statutory
justification
duty
suspect
15
820,
692,
(2004)
Venegas County
Angeles
Cal.Rptr.3d
v.
32 Cal.4th
Los
839-840 [11
immunity
in
(recognizing availability
qualified
P.3d
defense to 1983 claims asserted
§
87
1]
Mendoza,
711;
courts);
County
supra,
v.
Cal.App.4th page
the California
see
206
at
Martinez
(Martinez).
Angeles, supra,
page
342
Cal.App.4th
Los
47
16
463,
(9th
2007)
(Blankenhom)
City
Orange
Blankenhorn v.
Cir.
485 F.3d
484
(“Blankenhom
City
arresting
alleged
liable
officers’
use of excessive
seeks to hold the
City may
policy
if
deliberate
caused the
force. The
be held liable under section 1983
its
(1978)
alleged.”);
City Dept.
constitutional violation
see Monell v. New York
Social Services
611,
(agency liability
L.Ed.2d
S.Ct.
under
1983 where
§
436 U.S.
694
98
[56
2018]
pursuant
policy).
undertaken
to official
misconduct of individual officers was
17Blankenhorn,
(“Blankenhorn
page
F.3d at
485
also seeks to hold Chief
Nguyen’s alleged
during
Blankenhom
punching
Romero liable for
use of excessive force
‘
capacity
culpable
individual
“for his own
arrest. Chief Romero can be held liable
subordinates;
training, supervision,
in the
or control of his
for his
action or inaction
a reckless or
acquiescence
deprivation^]
in the constitutional
or for conduct
showed
’ ”);
(1989)
rights
see
v. Harris
Here, Ricchiuto and as Moody the of Officers perceptions 14, 2011, November were faced on the of they evening circumstances were they testified at about what they length of course issue—and certainly the and the officers’ to responses those thinking and seeing perceptions —but RPD’s evaluated in terms. While objective programmatic were to be situation attacked the have been relevant had Brown training might to approach conduct in violation charges rogue of these two officers with credibility argued testimony the never RPD rules or policy, prosecution the it. Nor was there basis to do any because Brown door to opened needed defense, on the “lawful element of Brown’s which focused performance” so. force issue in Fourth framed excessive charge, purely the section 69 him, rule of conduct was terms. to According applicable Amendment constitutional, or in the teachings not one found in a manual policy rules, Walle. As the court observed in Thompson, “police practices Sergeant time,” and as a to and from time to from regulations vary place place result, and/or objectivity “are an unreliable which to measure gauge by Amendment. (Thompson, conduct” under Fourth reasonableness police 472 F.3d supra,
e. Prejudice testimony admission of Walle’s Sergeant compounded The erroneous included effect of the court’s failure to instruct on lesser prejudicial could The nub of the matter is that offense of assault. simple arrest and against found that this behavior in 67-year-old’s struggling have did, officers, if that what he was never a genuine at these two swinging facts, Had the undertaken a close examination of the threat to them. under Graham it to do—without the reasonableness standard required that the concluding decisionmaking to short-circuit its process temptation had a materially did as were trained to do—Brown they officers simply he on the section than charge case for a more favorable outcome stronger the mix. Brown with Walle’s Sergeant was able muster Walle’s so impaired that the suggests distorting impact Sergeant 19Martinez, (defenses of official Cal.App.4th page 349 and footnote 8 Code, Code, immunity apply under Gov. 820.2 justification § under Pen. and official § 196 shooting knife-wielding wrongful against death claim in force suit officers for civil excessive PCP). high man who was as to violate his constitutional fair rights
the jury’s independence due reversal under justifying Chapman and to process, impartial 824], no U.S. 18 L.Ed.2d 87 S.Ct. but we see [17 California that, medicine. It suffices to without distraction strong say need for such that he there was a reasonable testimony, probability Walle’s Sergeant than he did. charge have obtained a better result on the section 69 would 243].) (1956) 46 Cal.2d P.2d v. Watson (People mantle of to law enforcement The law generous protection provides force, that, but where such officers accused of excessive also contemplates tried, have a role in are serious to be will vital enough juries questions force, them bringing what constitutes reasonable with objectively deciding *30 of the values of the which sit. community they their sense independent failed to meet two fundamental testimony requisites Because Walle’s Sergeant add to the common fund something for must testimony expert expert —that task, and that the must not to its knowledge jury brings usurp on the law—the admission of his court’s role in giving jury guidance role, undercut the this vital but jury’s ability only perform charge.20 Brown’s to mount a defense to the section 69 ability prejudiced IV. AND DISPOSITION
CONCLUSION of Brown’s conviction for is affirmed with judgment exception which is reversed conditionally pursuant proce- section violating If, 184. Hayes, page dure outlined in People Cal.App.4th court, does not retry the remittitur in the trial the prosecutor after the filing of Penal Code section offense within the time limit charged Brown on as if the remittitur (a)(2), the trial court shall proceed subdivision the lesser to reflect a conviction of constituted a modification of the judgment 240, and Penal Code section assault in violation of included offense of simple resentence Brown accordingly. shall
Rivera, J., concurred. that the conviction RUVOLO, J.,P. concur with Concurring. majority —I Code, 69) (Pen. duties in the of lawful § for officer resisting performance on the the trial court failed to instruct must be reversed because Code, 240), and there exists (Pen. included offense of assault simple § lesser have occurred had the that a different result would a reasonable probability been the omitted instruction. given one, on the lesser included if the had been instructed Though question close count, not have guilty verdict on that we would simple assault and had returned offense of this conviction must be reversed on this there is principal ground, Because need to discuss the issue of the erroneous admission of alleged no reversal, let alone ground as an alternative for publish posited Indeed, on this legally factually subject. discursive opinion complex at oral if the Penal agreed Brown’s counsel Code argument appellate conviction were to be reversed based on the failure to instruct on section 69 assault, there need the lesser offense of was no to decide the simple alternative for reversal. evidentiary ground 23, 2016, denied March and the
A was rehearing opinion petition modified to read as above. printed *31 reached the same conclusion assault conviction. Because the section 69 element of assault, performance duty lawful prejudice analysis is not an element of would have assault, quite
been different. The issue of potentially excessive force was relevant to but in a way charge. different than support it was to the section There is no evidence in the record to that, officers, response defense to assault to unreasonable or excessive force Brown “degree “actually reasonably necessary used a of force” that he protect believefd]” Thus, (CALCRIM himself. No. we conclude there is no reasonable likelihood of outright acquittal leading for his conduct in the fracas arrest.