Lead Opinion
Opinion
I.
INTRODUCTION
In Nоvember 2011, Wilbert Brown was riding his bicycle on a sidewalk one evening in Richmond when Officer Michael Ricchiuto ordered him to stop for wearing earphones while riding, and for not having a light. Brown, who was 67 years old at the time, attempted to flee, but Ricchiuto and a second officer, Officer James Moody, chased him down and arrested him. After a physical altercation during the arrest, the officers restrained Brown and found drugs in a baggie he had discarded during the chase. Charges arising out of this incident resulted in felony convictions for possession and transportation of cocaine and for using force or violence to resist an executive officer in the performance of his duty in violation of Penal Code section 69 (section 69). Brown appeals, seeking reversal of his conviction for violating section 69 on two grounds: (1) the failure to instruct the jury sua sponte regarding simple assault as a lesser necessarily included offense and (2) the erroneous admission of expert testimony regarding police standards for use of force. We agree with both contentions and shall conditionally reverse, finding that these errors, considered individually and cumulatively, require either a modification or reversal of Brown’s conviction for resisting an officer by force or violence.
STATEMENT OF FACTS AND PROCEDURE
A. Brown’s Arrest on November 14, 2011: The Officers’ Version Versus Brown’s Version
The initial series of events leading to Brown’s arrest was undisputed. Near dusk on November 14, 2011, Officer Ricchiuto was on patrol in his cruiser in the Iron Triangle area of Richmond, a neighborhood known for drug trafficking and gang activity, often involving young African-American men. He spotted Wilbert Brown, a 67-year-old African-American man, riding a bicycle on the sidewalk in violation оf the Richmond Municipal Code, while wearing headphones and without a light in violation of the California Vehicle Code. Officer Ricchiuto yelled at Brown to stop, but Brown sped up and tried to flee, with Officer Ricchiuto in pursuit. Another officer, Officer Moody, who was backing up Ricchiuto in a second cruiser, joined in the chase and at one point wedged his car in front of Brown’s path in an effort to cause a collision. Brown managed to steer around Moody’s car, grazing it and breaking a side mirror as he passed. Both officers eventually left their vehicles and pursued Brown on foot. The officers cornered Brown in an abandoned parking lot, where they arrested him after a brief altercation. In the course of that altercation, Brown sustained a fractured rib and knots on his head, while Officer Ricchiuto sustained a “boxer’s fracture” to the knuckle of his right hand. At the time of their encounter with Brown, both officers were several decades younger than Brown (Ricchiuto was in his “late 20s” and Moody was 38), and in excellent physical condition. They were also physically much bigger than Brown (Brown was five feet eight inches, 140 pounds, while the officers were six feet, 175 and 200 pounds, respectively).
What happened in the parking lot when the officers caught Brown was a matter of some dispute.
According to the officers, at that point they had no idea how old Brown was. To them, he was a man they had never seen before, who was wearing baggy clothes, and who, by this stage of the chase, was suspected of felony drug trafficking. Officer Moody caught up to Brown first, yelled at him repeatedly to stop, and then tackled him, throwing him off of his bicycle, and taking him to the ground. Brown “aggressively” “flipp[ed] back over” into a “sitting position,” and became combative, “swinging his hands” with a “clenched fist.” To get control of Brown and protect himself, Officer Moody
B. Expert Testimony
The prosecution presented the testimony of three experts to support its case, the first two to support the drug charges and the third to support the charge of resisting an executive officer with force or violence. Criminalist Richard Bowden testified as an expert in the area of analyzing controlled substances. Bowden was asked to examine a packet of 10 knot-tied plastic bags containing аn off-white chunky substance that had been contained in the baggie Brown discarded. Bowden tested one of the bags and concluded it contained 0.219 grams of cocaine base. Bowden offered the opinion that the other packets, which contained substantially similar amounts of what appeared to be the same substance, were also cocaine. The total estimated net weight of the substance in all 10 bags was 1.799 grams.
Detective Miguel Castillo of the Richmond Police Department (RPD) testified as an expert on the subject of possession of cocaine base for sale. Castillo opined that when a person is carrying narcotics for sale rather than for personal use, he holds the drugs in individual use packages in order to make speedy transactions, maximize profits, and avoid carrying a scale. A “street-level dealer” also avoids having to use “pay/owe” sheets by packaging narcotics in a single dose amount, which is approximately 0.2 grams. When asked about a hypothetical suspect who was in possession of the amount and
Under cross-examination, Castillo testified that a single dose of rock cocaine has an effect on the user for approximately 30 to 40 minutes and that the typical user may partake of this drug several times a day. In Castillo’s experience, however, most users buy only one dose at a time, get high from it, and then go back to their suppliers for more, instead of simply buying several doses at one time. Castillo conceded that in the 15 cases in which he had testified as an expert regarding possession of cocaine for sale, the amount of drugs in question was never as small as 1.7 grams.
Another RPD officer, Sergeant Albert Walle, provided expert testimony on the subject of police officer “defensive tactics.” The prosecutor began her examination of Walle by asking about the legal authority of the police to use reasonable force. Walle testified that Penal Code section 835 authorizes the police to “use reasonable force when necessary when a public offense has been committed in order to effect an arrest, prevent an escape or overcome resistance.” Walle also explained that the concept of “reasonable force” is defined in a 1989 Supreme Court case called Graham v. Connor.
Walle testified that when officers have to use reasonable force, their primary objective is to subdue suspects by overcoming their resistance and detaining them safely. The main factor affecting the officer’s decision about what force to use will be the suspect’s “resistance level” because the officer is going to be responding to what the suspect is doing. To teach officers how to respond appropriatеly, RPD employs a “use of force continuum,” which consists of a ladder of escalation of resistance on one side matched against a ladder of escalation of force by the officer on the other side. Officers are taught not to look at an altercation as a “fair fight,” but to employ a higher level of force than he or she faces: “You don’t want to bring a baton to a knife fight, so you also want to be at least one level higher than what you’re . . . encountering.”
Walle outlined other important considerations for an officer who faces resistance from a suspect, which include the need to react and take control as quickly as possible to avoid fatigue; the importance of gaining control of the
The prosecutor asked Walle to address a hypothetical situation in which a suspect was using a closed fist to swing at and attempt to punch an officer. Walle characterized that hypothetical suspect as engaging in “assaultive” behavior. In that situation, officers are trained to use either personal body weapons, a Taser, baton or pepper spray. Officers are also trained to provide assistance to an officer dealing with assaultive behavior because it is usually easier to gain control when another officer assists, and gaining control quickly is important for the safety of the officers as well as the suspect. Walle testified that “[m]ost use-of-force incidences happen within a matter of seconds, and they’re constantly evolving and they’re very dynamic, and an officer has to think on his feet very fast, and oftentimes doesn’t have time — has to be very instinctive and a lot of it is responsive to training.”
C. Jury Verdict and Sentence
The jury was instructed on two felony dmg charges; possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and transporting cocaine base (Health & Saf. Code, § 11352). It also received instruction regarding possession of cocaine base (Health & Saf. Code, § 11350), as a lesser offense of the possession for sale charge. The jury also was instructed on the charge that Brown violated section 69, the offense which is the subject of this appeal. Section 69, subdivision (a) states: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding оne year, or by both such fine and imprisonment.”
Section 69 can be violated in two separate ways. “ ‘The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.’ ” (People v. Smith (2013) 57
On October 4, 2013, the jury returned its verdicts, finding Brown not guilty of possession of cocaine base for sale, but guilty of the lesser included offense of possession of cocaine base; guilty of transportation of cocaine base; and guilty of using force or violence to resist an officer in the lawful perfоrmance of his duties in violation of section 69. Brown was sentenced in January 2014. The trial court granted a defense motion to dismiss the transportation conviction based on intervening legislation limiting that offense to transportation for sale. (See Health & Saf. Code, § 11352, subd. (c), added by Stats. 2013, ch. 504, § 1.) The court denied a defense motion to reduce the section 69 conviction to a misdemeanor, however, because Brown’s decision to flee caused both property damage and personal injury (Brown’s bike “wiped out” the mirror on the officer’s patrol car, and the officer injured his hand because of the contact with Brown). After considering the relevant sentencing factors, the court placed Brown on three years’ felony probation with a suspended 120-day jail term as a condition of probation.
DISCUSSION
A. The Instructional Error
1. Issue Presented
Framing the case as a choice between two starkly different scenarios, one recounted by the officers, or the other recounted by Brown, the Attorney General contends the jury chose the first, resolving a simple credibility contest in favor of the officers. That may be so, Brown responds, but by failing to instruct the jury on the lesser included offense of simple assault, the court never gave the jury the option of finding that both versions of the facts were partly true. He points out, for example, that even if the jury believed he swung at the officers, the jury could have found the officers unnecessarily initiated the violence by jumping on him and beating him as he lay prone on the ground, prepared to surrender. Without commenting on which version of events here was the more persuasive, we conclude that Brown’s assignment of instructional error has merit, that the jury should have beеn given the option of finding him guilty of simple assault, and that he was prejudiced by the error.
As noted above, a violation of section 69 can occur in two circumstances. Under that section, a defendant commits a violation by attempting to deter an officer’s lawful duty by violence or threat of violence. Alternatively, section 69 is violated where a defendant knowingly resists an officer’s execution of lawful duty by actually using force or violence. (Smith, supra,
An assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240 (section 240).) An “assault does not require a specific intent to cause injury or a
Brown concedes that he did not request an assault instruction, but he contends that the trial court had a sua sponte duty to instruct on assault as a lesser included offense of the section 69 charge. “ ‘California law has long provided that even absent a request, and over any party’s objection, a trial court must instruct a criminal jury on any lesser offense “necessarily included” in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence.’ [Citation.] ‘[T]he rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither “harsher [n]or more lenient than the evidence merits.” [Citations.]’ [Citation.] Thus, ‘a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.’ ” (Smith, supra, 57 Cal.4th at pp. 239-240.)
“ ‘ “We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.]” ’ [Citation.]” (People v. Campbell (2015)
2. Analysis
“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998)
Under the accusatory pleading test, however, we consider whether the facts alleged in the accusatory pleading include all the statutory elements of an assault. (Birks, supra, 19 Cal.4th at pp. 117-118.) Here, although the prosecutor’s trial theory was that Brown committed the second type of section 69 violation, the first amended information was not so limited. It alleged that Brown violated section 69 not just by attempting to deter or prevent the officer from performing his duties (which can be accomplished without force), but also by knowingly resisting the officers with force and violence. Because the accusatory pleading used the conjunctive to charge Brown with both ways of violating section 69, and it is not possible to violate the statute in the second way without committing an assault, we conclude that assault was necessarily a lesser included offense of section 69 under the accusatory pleading test. (See Smith, supra, 57 Cal.4th at pp. 242-243 [§ 148(a) was necessarily a lesser offense of § 69 when accusatory pleading charged the defendant with both ways of violating § 69].)
The Attorney General concedes “[f]or purposes of this appeal . . . that section 240 was a necessarily included offense of section 69 as alleged in the amended information.” But she nonetheless contends an assault instruction was not required in this case because there was no evidence that Brown’s offense was less than the crime charged. “[I]nstructions on lesser included offenses ‘are required whenever evidence that the defendant is guilty only of thе lesser offense is “substantial enough to merit consideration” by the jury. [Citations.] “Substantial evidence” in this context is “ ‘evidence from which a jury composed of reasonable [persons] could . . . concluded ” that the lesser offense, but not the greater, was committed. [Citations.]’ [Citation.] Instructions on lesser included offenses should be given ‘when the evidence raises a question as to whether all of the elements of the charged offense were present
Specifically, the Attorney General contends there was no evidence from which the jury could have concluded that Brown committed an assault without also violating section 69. She reasons that the jury was faced with a choice of either (1) crediting the prosecution evidence, which would establish that Brown forcibly resisted the officers and that the officers used reasonable force or (2) crediting Brown’s story, which would have established that the officers used excessive force and Brown was “completely unaggressive and defenseless.” This reading of the record misconstrues the function of the jury in the truth seeking process. “ ‘Our courts are not gambling halls but forums for the discovery of truth.’ [Citation.] Truth may lie neither with the defendant’s protestations of innocence nor with the prosecution’s assertion that the defendant is guilty of the offense charged, but at a point between these two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged.” (People v. Barton (1995)
Alternatively, the Attorney General argues that the trial evidence established that the officers used reasonable force as a matter of law. Reasoning that Sergeant Walle’s testimony established that the officers were legally entitled to use a level of force that was more than one level above the level of force used by the suspect, respondent contends that there is no evidence “in the record that would support a finding that the officers’ conduct was anything more than one level above that employed by [Brown] or that it continued longer than necessary to gain control of [Brown].” The premise of this argument — that Sergeant Walle’s testimony was properly admitted — is incorrect for reasons we explain below, but even had the testimony been narrowly enough framed and appropriate for admission, the argument fundamentally misconceives the proper role of expert testimony in a case of this nature. Such testimony can never be used to define, as a matter of law, what constitutes objectively reasonable force or to decide whether it was used in a given case.
As we have posited, the jury could have, on the one hand, believed Brown’s testimony that he did not resist the officers before he fell or was
“ ‘[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.’ [Citation.] Under the state standаrd, ‘such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.’ [Citations.] ‘The Supreme Court has emphasized “that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. [Citations.]” [Citation.]’ ” (People v. Campbell, supra,
Furthermore, this jury showed a readiness to scrutinize the evidence, draw its own independent conclusions of Brown’s level of culpability, and convict
The Attorney General’s only harmless error argument is that the instructional error did not affect the outcome because “in convicting [Brown] of violating section 69 the jury showed it rejected [Brown’s] claim of excessive force and found that the level of force used by the officers was at all times reasonable.” But in assessing prejudice, “it does not matter that the jury chose to convict the defendant of the greater offense over acquittal or that the defendant was convicted of the greater offense on sufficient evidence.” (People v. Racy (2007)
1. Principles Governing Admission of Expert Testimony Generally
We review the trial court’s ruling on the admissibility of expert testimony for abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012)
The principles of law governing admission of expert testimony are well settled. “ ‘California law permits a person with “special knowledge, skill, experience, training, or eduсation” in a particular field to qualify as an expert witness . . . and to give testimony in the form of an opinion.’ ” (People v. Vang (2011)
2. Civil Cases Addressing Expert Testimony on Excessive Force Issues
The use of excessive force by law enforcement officers is analyzed under the Fourth Amendment’s objective reasonableness requirement for a seizure of the person (Graham, supra, 490 U.S. at pp. 388, 394-395; Brown v. Ransweiler (2009)
Summing up the state of the law across the country, one commentator recently observed that, although some courts allow excessive force expert testimony, “a larger number of courts have held that it is not required or not admissible.” (Annot., Requirement for, and Admissibility of, Expert Testimony to Determine Whether Use of Particular Amount of Force in Course of Making Arrest Was Unreasonable (2015)
In Allgoewer, two police officers visited the home of the plaintiff Allgoewer to investigate a complaint from Allgoewer’s former wife that he was keeping the couple’s son in violation of a child custody order. (Allgoewer, supra,
Notably, the precise legal question addressed in Allgoewer — whether expert testimony is required from the plaintiff in a civil excessive force case — turns on a standard thаt differs significantly from the standard governing whether such testimony is admissible. For expert testimony to be admissible, it is not necessary that the subject of the testimony lie wholly beyond the understanding of the average juror, but merely that, even if the average juror has some knowledge of the topic, the expert might improve upon or refine the jury’s common fund of information.
Allgoewer and Robinson both involved force that was primarily physical in nature without the use of weapons or special law enforcement tools. The officers in Allgoewer threw the arrestee to the ground and wrenched his arms behind his back (Allgoewer, supra, 207 Cal.App.4th at pp. 758-759), and the officers in Robinson punched the arrestee and slammed his face and body to the ground (Robinson, supra,
In Thompson, two officers saw what they suspected was a drug buy take place between the driver of a parked black Mustang and a man who approached him. They tailed the Mustang for a few blocks and then tried to pull it over for a traffic stop. The Mustang at first pulled over, but then suddenly sped up and tried to get away, leading the officers and several others who joined them on a high-speed chase that ended with the Mustang crashing. Eventually, seven officers arrived at the scene of the crash, where the driver of the car, James Thompson, six feet two inches, 330 pounds, got out of the car and began aggressively resisting their efforts to arrest him, swinging at them with his fists. Thompson was tackled to the ground, and while on the ground faсedown, one officer, Officer Hespe, sat on his back and placed him in a chokehold, while the other officers handcuffed him. The chokehold collapsed Thompson’s air passages, and he suffocated to death. (Thompson, supra, 472 F.3d at pp. 447-448.) In the ensuing civil suit under section 1983 against the officers, only Officer Hespe remained as an individual defendant when the case went to trial, and the defense moved in limine prior to trial to exclude the testimony of two experts proffered by the plaintiffs. According to the plaintiffs’ proffer, the experts would have opined that Officer Hespe did not adhere to his training and used a chokehold in violation of his department’s use-of-force policy. (Thompson, at pp. 449-450.)
The trial court granted the motion in limine, and excluded the testimony. Affirming that ruling on appeal, the Seventh Circuit Court of Appeals noted that, under Graham, “What constitutes ‘reasonableness’ with regard to an officer’s actions in apprehending a suspect under the Fourth Amendment is ‘ “not capable of precise definition or mechanical application” but “requires careful attention to the facts and circumstances of each particular case (Thompson, supra,
Kopf was another case involving the use of various forms of physical force, which included the use of a trained police dog. In that case, a man and a woman, Anthony Casella and Tammy Obloy, were suspects in the robbery of a pizza parlor. A team of police officers chased them, at first by car, and then, eventually, on foot, catching up to them in an area behind a garage, where the suspects tried to hide in a narrow passageway between two buildings. The officers released a police dog into the passageway, where it mauled both Casella and Obloy, despite cries from Obloy not to let the dog attack her because she was pregnant. The officers eventually dragged the suspects out of the passageway, with the dog continuing to bite at Casella. They testified that, once Cassella was freed from the passageway, he lunged at them. In response, an officer struck Casella multiple times in the head with a flashlight until it broke, and then with a slapjack. Casella suffered multiple lacerations from the dog bites and permanent brain injury from the blows to his head. (Kopf supra, 993 F.2d at pp. 375-376.) At the trial of a subsequent section 1983 case brought by Cassella’s personal representative (he had since died in an unrelated incident), the officers testified that in making the arrests they simply followed their training. In rebuttal, the plaintiffs sought to offer the expert testimony of a use-of-force expert who proposed to testify that the officers, in fact, violated departmental use-of-force policy and did not follow their training. {Kopf at pp. 376-377.)
The trial court excluded the plaintiff’s expert, and on appeal a panel of the Fourth Circuit Court of Appeals reversed. (Kopf supra,
Hygh v. Jacobs (2d Cir. 1992)
While some of these cases are more directly applicable than others, each of them is to some degree instructive. Broadly speaking, Allgoewer, Robinson, Thompson and Kopf all view the utility of expert testimony in civil excessive force cases through a common frame of reference. Within that frame, the correct analysis is case by case and very much dependent on the particular facts presented, but in general, where only bodily force is used, the less likely it will be that an excessive force expert will add something to the common
3. Analysis
a. The Threshold Issue of Form
The Attorney General acknowledged at oral argument that expert testimony from the prosecution on the issue of excessive force is “unusual” on a section 69 charge. It is indeed unusual, and was here, both for the substance offered and the way in which it was presented. In the course of his testimony, Sergeant Walle opined at one point that, taking the officers’ version of events as true, Brown had engaged in “assaultive” conduct, justifying the force the officers used in response, but for the most part his testimony was presented as a general overview of the applicable law and the “defensive tactics” course that he teaches to all officers in the RPD. The purpose of this tutorial was never made clear to the jury, but the prosecutor did explain to the court— though not to the jury — that she was concerned jurors could “get the wrong impression” about the aggressive tactics these officers employed to subdue a fleeing 67 year old: “[Wjhen there’s a struggle, especially with more than one officer, juries can get the wrong impression that . . . they’re ganging up on him,” and when “there’s a knee strike to the ribs . . . which then is followed by a punch, which is essentially a distraction blow, can seem [¶] . . . [¶] excessive. But they are trained to use . . . these . . . tactics to get someone under control.”
The Evidence Code presupposes the presentation of expert testimony in the form of reasoned opinions.
b. Specialized Knowledge
For the jury to sort out what happened here, specialized knowledge was not required. Because these officers used “force . . . reduced to its most primitive form — the bare hands” (Kopfi supra,
In a different criminal context but one also raising the issue of the admissibility of expert testimony on matters for jury determination under a legal standard of objective reasonableness, the court excluded testimony from an expert in People v Czahara (1988)
The Czahara court explained, “the reasonableness of [the defendant’s] reaction is left to the jurors precisely so that they may bring their common experience and their own values to bear on the question of whether the provocation partially excused the violence. . . . While courts have frequently held certain categories of provocation adequate or inadequate as a matter of law, the modem tendency is to leave the jury free to apply community norms to the question. [Citation.] [¶] Psychologists, psychiatrists or sociologists may have specialized empirical knowledge regarding the range of reactions to a given provocation, . . . [b]ut this information would not materially assist the jury in its task; the jury must determine not only if the reaction is ordinary but if it is reasonable . . . .” (Czahara, supra,
Similarly, here, it was important for a jury to apply a reasonableness standard using its common knowledge. Once the jury determined that some use of force was appropriate in subduing Brown, its task was to determine whether these officers overreacted to the circumstances. To guide that assessment, Graham lays down a broad test highlighting certain factors for consideration, all to be viewed from the standpoint of the officer in the field. (Martinez v. County of Los Angeles (1996)
c. Expert Testimony on the Law
“There are limits to еxpert testimony, not the least of which is the prohibition against admission of an expert’s opinion on a question of law.” (Summers v. A. L. Gilbert Co. (1999)
The Attorney General points out that Sergeant Walle discussed the law only briefly, by way of background explanation. The testimony may have been brief, but it was powerful. Clearly, the jury focused on it. Perhaps not surprisingly, since the jury had no other source of legal guidance on this key legal issue — by contrast to Hygh, where an expert merely echoed the trial court’s instructions — it asked for a read-back during deliberations of the “testimony of [Sergeant] Walle regarding training of police officers, specifically regarding compliance strikes and reasonable vs excessive force . . . i.e. need his entire testimony other than his introduction.” (Italics added.) Thus, even though Sergeant Walle did not in terms advise the jury how to decide the ultimate issue, he did manage to provide it with a legal standard for decision, thereby vesting himself with authority as a source of legal knowledge. Summing up the problem with expert testimony of this sort in Hygh, the Second Circuit Court of Appeals explained: “The danger is that the jury may think that the ‘expert’ in the particular branch of the law knows more than the judge — surely an inadmissible inference in our system of law.” (Hygh, supra,
As in Burton, supra,
The prosecutor was, of course, entitled to ensure the jury understood “[t]here will virtually always be a range of conduct that is reasonable” (Brown, supra,
d. Invasion of the Province of the Jury
Emphasizing that Officer Walle did not opine on the ultimate issue of reasonableness, the Attorney General points out that “it was still up to the jury to decide whether the officers’ actions in this case conformed to their training” and that “[t]he jury’s verdict suggests ... it found that the offiсers’
The Attorney General also contends that the training testimony could have cut both ways, since “if the jury found that the officers’ actions were inconsistent with their training it would tend to support the argument that the force used was unreasonable.” But the idea that RPD’s training regimen can serve as a valid Fourth Amendment benchmark for reasonableness — available for either side to argue — rests on the premise that the officers’ training itself is reasonable. We have no reason to doubt that premise as a matter of law enforcement policy, but by placing the issue before the jury, the court opened up a line of inquiry that was potentially distracting and confusing.
The balance of probative value versus potential to confuse and distract illustrates a key difference between this case and the civil cases addressing the admissibility of testimony from a police training expert on excessive force issues. In general, the scope of relevant subject matter implicating issues of excessive force tends to be broader in civil cases than it is in criminal cases, and as a result, the probative value of testimony from an excessive force expert is typically stronger there. In section 1983 cases, for example, the contested issues may include an officer’s good faith as part of a qualified immunity defense,
Here, the perceptions of Officers Moody and Ricchiuto as to the circumstances they faced on the evening of November 14, 2011, were certainly in issue — and of course they testified at length about what they were seeing and thinking — but those perceptions and the officers’ responses to the situation were to be evaluated in objective terms. While RPD’s programmatic approach to training might have been relevant had Brown attacked the credibility of these two officers with charges of rogue conduct in violation of RPD rules or policy, the prosecution never argued that expert testimony was needed because Brown opened the door to it. Nor was there any basis to do so. Brown’s defense, which focused on the “lawful performance” element of the section 69 charge, framed the excessive force issue in purely Fourth Amendment terms. According to him, the applicable rule of conduct was constitutional, not one found in a policy manual or in the teachings of Sergeant Walle. As the court observed in Thompson, “police rules, practices and regulations vary from place to place and from time to time,” and as a result, “аre an unreliable gauge by which to measure the objectivity and/or reasonableness of police conduct” under the Fourth Amendment. (Thompson, supra, 472 F.3d at p. 455.)
e. Prejudice
The erroneous admission of Sergeant Walle’s testimony compounded the prejudicial effect of the court’s failure to instruct on the lesser included offense of simple assault. The nub of the matter is that the jury could have found that this 67-year-old’s behavior in struggling against arrest and swinging at these two officers, if that is what he did, was never a genuine threat to them. Had the jury undertaken a close examination of the facts, as the reasonableness standard under Graham required it to do — without the temptation to short-circuit its decisionmaking process by concluding that the officers simply did as they were trained to do — Brown had a materially stronger case for a more favorable outcome on the section 69 charge than he was able to muster with Sergeant Walle’s testimony in the mix. Brown suggests that the distorting impact of Sergeant Walle’s testimony so impaired
The law provides a generous mantle of protection to law enforcement officers accused of excessive force, but also contemplates that, where such questions are serious enough to be tried, juries will have a vital role in deciding what constitutes objectively reasonable force, bringing with them their independent sense of the values of the community in which they sit. Because Sergeant Walle’s testimony failed to meet two fundamental requisites for expert testimony — that the expert must add something to the common fund of knowledge the jury brings to its task, and that the expert must not usurp the court’s role in giving the jury guidance on the law — the admission of his testimony not only undercut the jury’s ability to perform this vital role, but prejudiced Brown’s ability to mount a defense to the section 69 charge.
IV.
CONCLUSION AND DISPOSITION
The judgment is affirmed with the exception of Brown’s conviction for violating section 69, which is conditionally reversed pursuant to the procedure outlined in People v. Hayes, supra,
Notes
Brown also seeks review of the denial of a pretrial motion for discovery of the personnel records of the officers involved in the incident pursuant to Pitchess v. Superior Court (1974)
Both officers were wearing bullet-proof vests. Officer Moody testified that Brown never succeeded in hitting him. Officer Ricchiuto testified that Brown hit him twice. Neither suffered injuries from what Officer Moody described as Brown’s “flail[ing]” at them.
See Graham v. Connor (1989)
Neither party requested a special jury instruction giving the jury further guidance as to what constitutes “reasonable force” under Graham. The CALCRIM No. 2670 instruction the jury received, however, did elaborate in another respect, providing guidance as to the lawfulness of an arrestee’s conduct when confronted with unreasonable or excessive force by an officer. “If a peace officer uses unreasonable or excessive force while . . . arresting ... a person, that person may lawfully use reasonable force to defend himself or herself,” which is in turn defined as “that degree of force 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.” (CALCRIM No. 2670.) But the criteria by which to evaluate objective reasonableness — whether from a reasonable officer’s perspective or from the arrestee’s — were, in this case, left to the jury.
In assessing reasonableness, the Graham test calls for consideration of at least three factors (which have come to be called the “Graham factors” in subsequent case law and academic commentary): (1) the severity of the offense for which the suspect was arrested, (2) the immediacy of the threat that the suspect posed to the officer or officers, and (3) whether the suspect was fleeing or actively resisting. (Graham, supra,
People v. Dejourney (2011)
Miller v. Los Angeles County Flood Control Dist. (1973)
See Evidence Code section 801, subdivision (a) (“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion” as is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact” (italics added)); Evidence Code section 801, subdivision (b) (expert testimony must be based on matter “that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates” (italics addеd)); Evidence Code section 802 (“A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter . . . upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a
A pair of federal cases, both from the Sixth Circuit Court of Appeals, illustrate the importance of ensuring at the “gatekeeping” stage that proposed testimony from a police practices expert is specifically focused on matters within the expert’s qualifications. In Berry v. City of Detroit (6th Cir. 1994)
The Attorney General argues that Brown failed to preserve any specific objection to Sergeant Walle’s testimony about the law. But this is not a case in which the appeal raises “ ‘a wholly different basis of exclusion’ ” than the trial objections. (People v. Williams (1988)
Munoz, supra,
This illustrates how the open-ended form of much of Sergeant Walle’s testimony created other problems. Sergeant Walle obviously was not and could never have been qualified as an expert in the law. But because his testimony was not presented in a way that ensured he would address only a “discrete area of police practices about which he had specialized knowledge” (Champion, supra,
In closing argument, Brown’s contention was not that Officers Moody and Ricchiuto were poorly trained or incompetent, but that they made a mistake when they perceived him as a threat, that they overreacted to the situation and beat him up in retaliation for his defiance, and that their testimony about him swinging at them was fabricated to cover up their mistake.
Brown points out that in the wake of a series of high profile controversies involving use of force by police officers in different parts of the country, a number of law enforcement agencies have adopted reforms to their use-of-force training. (See Apuzzo, Police Rethink Long Tradition on Using Force, N.Y. Times (May 5, 2015) p. A1; see also Note, The Shocking Truth: Law Enforcement’s Use and Abuse of Lasers and the Need for Reform (2011) 56 Vill. L.Rev. 363, 384-385 [pointing out that the Federal Law Enforcement Training Center (FLETC), the national training institute that developed the use-of-force continuum, has made clear that, because of the formulaic nature of the continuum, it “directly conflicts with” Graham’s conception that “ ‘reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application’ ”, and as a result, FLETC has “done away with the use-of-force continuum” in its own training materials, although many law enforcement agencies around the country still use some form of the continuum in their training programs.].)
Venegas v. County of Los Angeles (2004)
Blankenhorn v. City of Orange (9th Cir. 2007)
Blankenhorn, supra,
Calatayud v. State of California (1998)
Martinez, supra,
Though the question is a close one, if the jury had been instructed on the lesser included offense of simple assault and had returned a guilty verdict on that count, we would not have
Concurrence Opinion
Concurring. — I concur with the majority that the conviction for resisting an officer in the performance of lawful duties (Pen. Code, § 69) must be reversed because the trial court failed to instruct the jury on the lesser included offense of simple assault (Pen. Code, § 240), and there exists a reasonable probability that a different result would have occurred had the jury been given the omitted instruction.
A petition for a rehearing was denied March 23, 2016, and the opinion was modified to read as printed above.