Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD218031, Theodore M. Weathers, Judge.
McDONALD, J.
An information charged Ut Nguyen with resisting an executive officer (Pen. Code, § 69, count 1) and battery on a police officer (§ 243, subd. (b), count 2). The information also alleged four "prison priors" (§ 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subd. (c)(1)). In a bifurcated proceeding, the jury convicted him of count 1 but could not reach a verdict on count 2. A mistrial on count 2 was declared and, on motion by the prosecutor, count 2 was dismissed. In proceedings before the court, Nguyen admitted the prior strike conviction and prison priors allegations.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Nguyen asserts the court misinstructed the jury and incorrectly answered a jury question and that the errors were prejudicial. He also seeks review of the trial court's order denying his Pitchess motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
I
FACTS
Prosecution Case
On January 1, Nguyen was in an adult bookstore when he began yelling and knocking DVD's off the shelf. When asked by the clerk what he was doing, Nguyen replied he was causing a disturbance and demanded that the clerk call police. San Diego Police Officers Meyer and Parga responded to the call. On arriving at the bookstore, they contacted Nguyen, who said he wanted to be taken downtown. Nguyen showed symptoms of being under the influence of methamphetamine, and said he had used methamphetamine earlier that day. Nguyen was arrested and transported to the police station. Nguyen complied with the officers' orders and offered "no resistance whatsoever."
Meyer testified that, when they arrived downtown, he took Nguyen into the blood draw room. The only people in the room were Meyer, Nguyen and the drug technician (Ms. Haggard). Meyer told Nguyen that he was going to uncuff Nguyen's right hand and instructed Nguyen to place that hand on his head and to sit down in the chair, and Meyer would then clasp the handcuff to a pole. Nguyen verbally acknowledged the instruction.
However, when Nguyen's hand was released, he did not move. Meyer reclasped the handcuff, and again instructed Nguyen that he was to place his right hand on his head after the cuff was removed. Meyer then removed the handcuff, and Nguyen began slowly moving his hand toward his head, and Meyer believed he was complying with the instructions. However, without warning, Nguyen turned and pushed Meyer on the chest; Meyer started to fall backwards, and Nguyen reached to take his firearm. Meyer grabbed Nguyen by the shirt and simultaneously moved to protect his firearm by putting his hand over the weapon, but felt both of Nguyen's hands on the weapon. Meyer was able to remove Nguyen's hands from the weapon by striking his arms. Meyer then lifted Nguyen and threw him on the table. Nguyen continued to resist, but other officers rushed in and were able to subdue him.
Ms. Haggard testified that, after Meyer brought Nguyen into the blood draw room and removed one of the handcuffs, she saw Nguyen turn suddenly and shove Meyer "real hard" and grab for Meyer's gun. Haggard screamed and backed away out of the room. Meyer and Nguyen continued struggling until help arrived to assist in subduing Nguyen.
Defense Case
Nguyen testified he was released from jail two days before the incident and resumed using drugs. He wanted police to arrest him because he feared he would commit a crime to support his habit.
When they entered the blood draw room, Nguyen tried to comply with Meyer's instructions when Meyer told him to put his hand on his head. However, Meyer "freaked" and forced Nguyen's hand down and threw him to the floor. Nguyen never tried to grab Meyer's gun or assault Meyer but was instead just trying to get away from his assault.
II
ANALYSIS
A. The Instructional Error
The court's instructions on count 1 stated the prosecution was required to prove (1) Nguyen unlawfully used force to resist an executive officer (2) when Nguyen acted, the officer was performing his lawful duty, and (3) when Nguyen acted, he knew the officer was performing his duty. Nguyen contends the trial court's instructions on count 1 were prejudicially deficient because they omitted any reference to the legal principle that an officer is not performing his lawful duty if the officer uses excessive force.
"The long-standing rule in California... is that a defendant cannot be convicted of an offense against a peace officer ' "engaged in... the performance of... [his or her] duties" ' unless the officer was acting lawfully at the time the offense... was committed [against him or her]." (In re Manuel G. (1997) 16 Cal.4th 805, 815.) An individual who physically resists a detention that is unlawful because the officer uses excessive force is not guilty of battery on, or resisting arrest by, an officer engaged in the performance of his or her lawful duties because the officer is acting outside those lawful duties in using excessive force to detain the individual. (People v. Curtis (1969) 70 Cal.2d 347, 354-357 [battery on a peace officer], disapproved on other grounds in People v. Gonzalez (1990) 51 Cal.3d 1179, 1222; Jackson v. Superior Court (1950) 98 Cal.App.2d 183, 188-189 [resisting arrest].) Stated differently, when a police officer uses excessive force, the individual is entitled to use reasonable force to protect him- or herself in accordance with principles of self-defense. (People v. Olguin (1981) 119 Cal.App.3d 39, 46-47.)
Although Nguyen did not specifically request an instruction on the effect of Meyer's alleged use of excessive force, " ' "[i]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) Nguyen contends, and the People concede, the trial court was obligated sua sponte to instruct on the relevance of Meyer's alleged excessive force, and the omission constituted instructional error.
The parties dispute whether the error requires reversal. The People, arguing the proper test for prejudice is People v. Watson (1956) 46 Cal.2d 818, contend the error does not require reversal because it is not reasonably probable that Nguyen would have obtained a more favorable result absent the error. Nguyen argues the test for prejudice is the more stringent standard of Chapman v. California (1967) 386 U.S. 18 because the error improperly described or omitted an element of the offense by not explaining that an officer is not performing his or her lawful duty if the officer uses excessive force.
We conclude Chapman must be applied here. In People v. Gonzalez, supra, 51 Cal.3d 1179 (disapproved on other grounds in In re Steele (2004) 32 Cal.4th 682, 691), the court observed that it is "the long-standing rule in California and other jurisdictions that [a defendant] cannot be convicted of an offense against a peace officer 'engaged in... the performance of... duties' unless the officer was acting lawfully at the time. [Citations.] The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in 'duties, ' for purposes of an offense defined in such terms, if the officer's conduct is unlawful." (Gonzalez, at p. 1217.) The Gonzalez court then stated:
"California cases hold that although the court, not the jury, usually decides whether police action was supported by legal cause, disputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element, since the lawfulness of the victim's conduct forms part of the corpus delicti of the offense." (Ibid., italics added.)
We interpret Gonzalez to mean that when, as here, the charged offense requires the prosecution to prove beyond a reasonable doubt that the defendant resisted an officer when that officer was performing his "lawful duty, " and the evidence suggests the officer used excessive force before the defendant resisted, it is federal constitutional error not to instruct the jury on the issue of excessive force. (Cf. People v. Curtis, supra, 70 Cal.2d at p. 359 [in determining "question of the exercise of reasonable force and the right to self-defense... is for the trier of fact to determine" and reversing battery conviction because "jury was not adequately instructed as to the rights and duties of the respective parties"].) Our conclusion finds analogous support in People v. Mayfield (1997) 14 Cal.4th 668. In Mayfield, the defendant was convicted of kidnapping for extortion, in violation of section 209, and the jury was instructed that the elements of the crime included proof the defendant obtained an official act of a public officer, and the official act was induced by a wrongful use of force or fear. However, the jury was then instructed that the "wrongful use of force and fear to obtain an official act of law enforcement officers may include directing them to refrain from resisting and stopping the criminal acts, kidnapping, escape and assault then taking place for fear the kidnapper would kill or further injure the hostage." (Mayfield, at p. 770.) After a lengthy analysis, the Mayfield court concluded the instruction inadequately defined the limits of the "official act" element of the offense, and concluded Chapman applied because "[a]n instruction that omits a required definition of or misdescribes an element of an offense is harmless only if 'it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ' [Quoting People v. Harris (1994) 9 Cal.4th 407, 424.]" (Mayfield, at p. 774.) Similarly, the instruction here omitted a required definition—whether the "lawful duty" element was absent because Meyer used excessive force—and we may therefore deem the omission harmless only if it appears beyond a reasonable doubt the error did not contribute to the verdict.
Under the Chapman standard, an error is harmless when the defendant in effect concedes the existence of the missing element by, e.g., not offering any evidence on the element, not disputing the prosecution's evidence, or not arguing to the jury that the prosecution did not prove the element beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 504-505.) It can also be deemed harmless under the Chapman standard when "no rational jury could have found the missing element unproven...." (People v. Nicholson (2004) 123 Cal.App.4th 823, 833.)
The absent element—whether Meyer used excessive force—was not conceded, but was the focal point of Nguyen's defense: Nguyen testified he wanted to be arrested when he acted out at the bookstore and, when they arrived at the police station, Nguyen tried to comply with Meyer's instructions when told to put his hand on his head, but Meyer "freaked" and forced his hand down and threw him to the floor, and that Nguyen's subsequent physical conduct was designed to "get away" from Meyer's actions. This was not a case in which no rational jury could have found in favor of Nguyen on the missing element, because this case turned on assessing the credibility of two sharply conflicting versions of what happened, and a rational jury could have credited Nguyen's version while rejecting the prosecution's witnesses.
The People, arguing it is not reasonably likely Nguyen would have obtained a more favorable result, assert the prosecution's evidence was strong because Meyer's testimony was corroborated by Haggard (who verified Nguyen's actions were unprovoked) and another officer who described Meyer's statement in the blood draw room that Nguyen was trying to take his gun. However, the jury was unable to reach a verdict on count 2. Count 2 required a finding that Nguyen willfully "and unlawfully" touched Meyer in a harmful or offensive manner. The inability to reach a verdict on that count appears irreconcilable with the People's claim that the jury necessarily credited Meyer's entire version of the events.
Additionally, we agree with Nguyen that other indicia confirm this was a close case. First, although the trial testimony consumed under three hours, the jury deliberated more than six hours over a two-day period, which indicates this was a close case. (People v. Williams (1971) 22 Cal.App.3d 34, 39-40; contra, People v. Walker (1995) 31 Cal.App.4th 432, 437-439 .) More importantly, the jury specifically asked for a read-back of Nguyen's testimony that Nguyen "pushed" Meyer. When the court responded by reading back Meyer's testimony, the jury repeated its request for a read-back of Nguyen's testimony "when [Nguyen] said he pushed... Meyer" and further asked for the definition of "force or violence in Count 1, " which suggests the jury was struggling with its decision on count 1. (Williams, at pp.39-40.)
Finally, the court's response to the jury's request for further illumination of the terms "force or violence" for count 1 may have exacerbated the prior omission of any reference to the significance of excessive force by Meyer. When the court responded to the jury's inquiry, it elected to employ the language CALJIC 16.141 but purposefully omitted the bracketed word "unlawful" from that instruction—which would have instructed that the offensive or harmful touching must be "unlawful"—because the court believed the bracketed word was inapplicable to cases in which there was no self-defense issue. However, People v. Olguin, supra, 119 Cal.App.3d 39 explained that "a police officer is not permitted to use unreasonable or excessive force..., and if the officer does use such force the arrestee may use reasonable force to protect himself in accordance with the principles of self-defense." (Id. at pp. 46-47, italics added.) Thus, the trial court's original instructions on count 1 were deficient because they omitted any reference to the legal principle that an officer is not performing his or her lawful duty if the officer uses excessive force, and that omission was amplified during the jury's deliberations when the court's response to the jury's inquiry again omitted any reference to the legal principles that the defendant's touching must be "unlawful." On this record, we cannot conclude the erroneous instruction was harmless beyond a reasonable doubt, and we therefore reverse the conviction on count 1.
B. The Pitchess Motion
Nguyen requests that this court review the trial court's denial of any discovery pursuant to his Pitchess motion. In the trial court, Nguyen filed a Pitchess motion in which he sought discovery of the personnel records for Meyer, including records relating to complaints of prior use of excessive force. The prosecution withdrew any objection to permitting the court to review the personnel records in camera, and the trial court conducted an in camera review of the requested personnel files. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 ["If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance."].) After reviewing the personnel records in camera, the court ruled there were no records in the file that were discoverable.
On appeal, the parties agree this court should examine the materials in camera and determine whether the trial court abused its discretion in declining to disclose the contents of the officer's personnel file. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We have examined the personnel records in camera and conclude the trial court did not abuse its discretion in finding there were no records in the file discoverable in response to Nguyen's motion.
DISPOSITION
The judgment is reversed.
WE CONCUR: HALLER, Acting P. J.AARON, J.