Opinion
B224350
12-06-2011
THE PEOPLE, Plaintiff and Respondent, v. DELORA ROBERSON, Defendant and Appellant.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA074116)
APPEAL from a judgment of the Superior Court of Los Angeles County. Alan B. Honeycutt, Judge. Affirmed.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Following two jury trials, defendant Delora Roberson was convicted of two counts of commercial burglary, two counts of grand theft, felony resisting arrest and assault with a deadly weapon upon a police officer. Her sole contention on appeal is that she was denied due process and a fair trial as a result of the trial court's refusal to instruct on the defense of excessive force by a peace officer. We affirm.
Defendant was charged by amended information with commercial burglary (Pen. Code, § 459, counts 2 and 8), grand theft (Pen. Code, § 487, subd. (a), counts 3 and 9), assault upon a police officer (Pen. Code, § 245, subd. (c), count 4), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 5), and felony resisting arrest (Pen. Code, § 69, count 10); a personal use of a deadly weapon enhancement was also alleged. On August 3, 2009, a jury found defendant guilty on counts 2, 3, 8 and 9, but was unable to reach a verdict on counts 4, 5, and 10. On January 29, 2010, following a second jury trial, defendant was convicted of assault with a deadly weapon upon a peace officer (count 4) and felony resisting arrest (count 10); an enhancement for intentional infliction of great bodily injury was found true on count 4. The prosecutor dismissed the assault with a deadly weapon charge (count 5). Defendant was sentenced to nine years four months in prison. She timely appealed.
Codefendant Amaya Monique Martin was jointly charged on counts 3, 5 and 9. She pled guilty to the two burglaries and assault on a police officer and was sentenced to four years eight months in prison.
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357), the evidence established that defendant and two other women, Danisha Lashanae Brown and Amaya Monique Martin, concocted a plan pursuant to which Brown and Martin would enter a department store, grab merchandise and then run outside to escape in a waiting car driven by defendant. The three women put the plan into action twice on January 24, 2009. The first time at a T.J. Maxx in Cerritos was successful. They were not as lucky when they tried the same ploy later that evening at a Marshalls in Torrance. It is this second incident that forms the basis of the assault with a deadly weapon on a police officer (count 4) and felony resisting arrest (count 10) charges that defendant challengs on appeal. Because the appeal relates solely to these two counts decided in the second trial, we detail only the facts related to this incident. A. People's Case
At about 8:00 p.m. on January 24, 2009, Torrance Police Officers Darryl Tatum and Jerome Taylor were in uniform and in a marked patrol car when they were dispatched to the Marshalls on Hawthorne Blvd. regarding a theft. Tatum parked the patrol car at the curb, facing a black car parked at the curb about 10 to 15 feet away; the engine of the black car was running. The two parked cars flanked the entrance to Marshalls. About 30 seconds later, Tatum saw Brown and Martin run out of Marshalls towards the black car. Both women were carrying clothes and being pursued by the loss prevention officer. Tatum and Taylor got out of the patrol car. As they ran towards the women, the officers identified themselves and yelled "stop." The women did not comply. As Martin ran to the rear driver's side door of the black car, Brown tried to get into the front passenger seat. Tatum wrestled Brown away from the car and tried to handcuff her; he could see Taylor standing in front of the driver's side headlight of the black car. While Tatum grappled with Brown, he heard Taylor repeatedly yelling, "stop." Tatum did not see Martin enter the black car, but from inside the car he heard Martin yelling, "go, go, go." Next, Tatum heard a gunshot. Tatum immediately looked up. He saw Taylor limping around in obvious pain and that the black car had moved a "ways away" from where it had been parked and was turning onto Hawthorne Blvd.
Taylor's recollection of the incident was consistent with Tatum's. As Tatum moved to the passenger side of the black car to detain Brown, Taylor stepped in front of the black car's driver's side headlight, drew his weapon and yelled, "stop." Taylor drew his gun to hold the car in place for two reasons. First, because he had lost sight of Tatum and Brown struggling on the ground and did not know whether they were under the car and; second, because he did not want the car moving forward and hitting him. Taylor made eye contact with defendant and, although the car windows were up, Taylor yelled loudly enough that he was sure defendant heard him. At first, defendant put her hands in the air in a "surrender" position. But a few seconds later, after Taylor heard someone in the car yelling, "go, go, go," defendant dropped her hands back down to the steering wheel and accelerated. The car hit Taylor in the left knee; the impact threw him onto the hood of the car and up towards the windshield. With his face within inches from the windshield, Taylor could see Martin in the back seat of the black car. Taylor yelled at defendant to stop, but she continued to accelerate. Still unsure whether Tatum might be under the car, Taylor fired his weapon to stop the car. Taylor aimed at the windshield but the movement of the car caused him to slide across the car hood and his shot entered through the closed driver's side window, shattering it. Broken glass in the parking lot marked where the black car was located when Taylor fired. Taylor fell off the hood at about that same location. Defendant continued driving out of the parking lot and onto Hawthorne Blvd. Taylor broadcast a description of the black car. When Taylor tried to go back to help Tatum, he realized his knee would not support him. He later had surgery for a fractured tibia and torn meniscus. He was unable to work for three months and at the time of trial was still in pain.
Torrance Police Sergeant Mark Underwood was driving towards Marshalls in response to a radio dispatch when he saw "a black sedan come tearing out of the driveway of the Marshalls parking lot" and turn right onto Hawthorne Blvd. Underwood saw just one person inside the black car and that the back driver's side door was "wide open." Underwood followed the black car until it hit a curb and stopped in front of a 7-Eleven. He saw defendant exit the driver's door, run behind the car to the passenger side, open the front passenger door and lean in. When defendant looked up at Underwood's approaching police car, she turned and ran. She was apprehended by dog handling officers a few hours later. B. Defense
Defendant testified that after Brown and Martin went into Marshalls, she waited in the car with the engine running. When the patrol car parked in front of her, defendant started to pull away from the curb. As she did so, Brown and Martin ran out of the store. Defendant put the car in park when she heard Martin banging on the trunk of the car and yelling at her to stop. Turning towards the passenger side, defendant saw Brown try to get in the front passenger side door but Officer Tatum pulled her away. Defendant heard Officer Taylor yelling at her to get out of the car and saw him running towards the car. Taylor stopped next to defendant's driver's side door, pulled a gun and pointed it at defendant through the closed driver's side window. Frightened, defendant put her hands up. Taylor instructed defendant to get out of the car. Before defendant could comply, Martin jumped in the back seat on the driver's side. As soon as Martin got into the car, Taylor fired at defendant, shattering the window; the bullet hit defendant in the hand and the leg. After defendant was shot, Martin yelled at defendant to "go." When defendant told Martin that she could not drive because she had been shot, Martin leaped from the back seat into the front passenger seat. Taylor put his hand in through the broken window and fired again at defendant's head, but this time the gun jammed. Martin jumped over the console and into defendant's lap. From that position, Martin drove the car out of the parking lot and onto Hawthorne Blvd. Martin stopped in front of a 7-Eleven, jumped out of the passenger side door and started running. Defendant tried to continue driving but her injured hand made it impossible and she crashed the car. Defendant got out of the car and opened the driver's side back door to look for her cell phone to call someone to pick her up. When she saw the police approaching, defendant ran away. She was apprehended later that night and taken to a hospital where she was questioned by police.
When interviewed by police at the hospital after she was arrested, defendant said that Martin (whom defendant falsely identified as "Gwen"), jumped into the front passenger seat.
When interviewed by the police at the hospital that night, defendant stated that she did not know whether Taylor had been hit by the car. At trial, defendant maintained that Martin drove the car out of the Marshalls parking lot that night and that the car did not hit Taylor. Defendant asserted that she was the only person testifying truthfully.
DISCUSSION
Defendant Was Entitled to Requested Instructions on Excessive Force
Defendant contends she was denied due process as a result of the trial court's refusal to give CALCRIM No. 2670 and portions of CALCRIM No. 860, which instruct that an officer who uses excessive force is not lawfully performing his duties. She argues that her testimony that Taylor shot at her while her arms were raised in a surrender position constitutes substantial evidence that Taylor used excessive force and required the trial court to give the requested instructions. We agree that the trial court should have given the requested instructions, but find the error harmless.
With exceptions not applicable here, a trial court must give a requested instruction that is supported by the evidence. (People v. Eid (2010) 187 Cal.App.4th 859, 879 (Eid); People v. Elize (1999) 71 Cal.App.4th 605, 612 (Elize); see also Pen. Code, § 1093, subd. (f) [judge shall instruct on any points of law pertinent to the issues if requested by either party].) This is true even if the requested instruction is inconsistent with another defense upon which the defendant is relying. (Elize, at p. 615 [inconsistency between instruction and defendant's testimony no reason to refuse instruction, so long as requested instruction is supported by substantial evidence]; see also People v. Sedeno (1974) 10 Cal.3d 703, 717 (Sedeno) [distinguishing between sua sponte and requested instructions], overruled on another point in People v. Breverman (1998) 19 Cal.4th 142, 155, 157.) "Evidence is substantial if a reasonable jury could find the existence of the particular facts underlying the instruction." (People v. Lee (2005) 131 Cal.App.4th 1413, 1426.) Doubts as to the sufficiency of the evidence to warrant a requested instruction should be resolved in favor of the defendant. (Eid, at p. 879; Elize, at p. 615.)
All undesignated statutory references are to the Penal Code.
That the defendant's conduct was in response to a peace officer's use of excessive force is a defense to a charge which includes as an element that a peace officer was engaged in his or her lawful duty. This is because an officer who uses excessive force is not engaged in the lawful performance of his duties. (People v. Adams (2009) 176 Cal.App.4th 946, 953; People v. Delahoussaye (1989) 213 Cal.App.3d 1, 7.) A person who uses reasonable force to protect herself from excessive force is therefore not guilty of any crime. (Adams, at p. 953.) Whether a police officer has used excessive force is a question of fact. (Delahoussaye, at p. 8.)
These concepts are explained in CALCRIM No. 2670, which instructs that the People have the burden of proving beyond a reasonable doubt that an officer was lawfully performing his duty and that an officer is not lawfully performing his duty if he uses "unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention." CALCRIM No. 2670 further instructs, "If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force. . . . [¶] If a peace officer uses unreasonable or excessive force while attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself. [¶] A person being arrested uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection."
CALCRIM No. 2652 defines the elements of resisting arrest in violation of section 69. The last bracketed (i.e. optional) paragraph of the form instruction reads: "A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive)." The Bench Notes for CALCRIM No. 2652 state: "If there is an issue in the case as to the lawful performance of a duty by a peace officer, give the last bracketed paragraph and CALCRIM No. 2670, Lawful Performance: Peace Officer."
CALCRIM No. 860 defines the elements of assault on a peace officer with a deadly weapon or force likely to produce great bodily injury in violation of section 245, subdivision (c). To prove that the defendant is guilty of this crime, bracketed element 7 of the instruction requires the people to prove: "The defendant did not act in self-defense." The Bench Notes to CALCRIM No. 860 state: "If there is sufficient evidence of self-defense . . . , the court has a sua sponte duty to instruct on the defense. Give bracketed element 7 and any appropriate defense instructions. . . . [¶] In addition, the court has a sua sponte duty to instruct on defendant's reliance on self-defense as it relates to the use of excessive force. [Citation.] If excessive force is an issue, the court has a sua sponte duty to instruct the jury that the defendant is not guilty of the offense charged . . . in which lawful performance is an element, if the defendant used reasonable force in response to excessive force. [Citation.] On request, the court must instruct that the prosecution has the burden of proving the lawfulness of the arrest beyond a reasonable doubt. [Citation.] If lawful performance is an issue, give the . . . appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Officer. . . ."
Here, defendant was charged in count 10 with resisting an officer in the performance of his duty in violation of section 69. In count 4, she was charged with assault with a deadly weapon of a peace officer engaged in the performance of his duties in violation of section 245, subdivision (c). An element of both offenses is proof beyond a reasonable doubt that the peace officer, in this case Taylor, was "lawfully" performing his duties at the time defendant acted. The trial court gave CALCRIM Nos. 860 and 2652 defining the elements of those crimes. It refused, however, defendant's request that it also give (1) the last bracketed paragraph in CALCRIM No. 2652 which refers to CALCRIM No. 2670, and (2) CALCRIM No. 2670. This was error.
These instructions do not appear to have been given or requested in the first trial.
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Relying on Sedeno, supra, 10 Cal.3d at page 716 and People v. Gutierrez (2003) 112 Cal.App.4th 704, the trial court explained that it would not give the requested instructions because an excessive force defense was inconsistent with the theory of defense, which was that Martin was driving the car, not defendant. Under this theory, whether the officer used excessive force would be irrelevant because defendant did not commit the assaultive act at all. But Sedeno and Gutierrez concerned a trial court's sua sponte duty to instruct on a defense. It is well settled that a trial court has no sua sponte duty to instruct on a particular defense unless "it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." (Sedeno, at p. 716; see also Gutierrez, at p. 709 ["Generally, when a defendant completely denies complicity in the charged crime, there is no error in failing to instruct on a lesser included offense."].)
Apart from whether the trial court had a sua sponte duty to instruct on an excessive force defense that was inconsistent with the theory that defendant was not driving the car, it was required to give these requested instructions. As noted by our Supreme Court in Sedeno, a defendant is entitled to requested instructions even on inconsistent defenses so long as the instructions are supported by the evidence. (Sedeno, supra, 10 Cal.3d at pp. 718, 720.) In determining whether the record contains substantial evidence of a defense, "the court should not consider the credibility of witnesses, instead leaving credibility determinations for the jury." (Elize, supra, 71 Cal.App.4th at p. 615.)
Here, whether Taylor used excessive force was a material issue presented by defendant's testimony that Taylor fired at her while her hands were up in a surrender position. The credibility of defendant's testimony was for the jury, not the trial court to decide. As defendant expressly requested an instruction on excessive force as a defense, it is immaterial that excessive force was inconsistent with defendant's other theory that defendant was not driving the car.
We conclude, however, the error was harmless under any standard including Chapman v. California (1967) 386 U.S. 18. We are satisfied beyond a reasonable doubt that if the trial court had correctly instructed on unlawful use of force, the jury would have convicted defendant as it did. The jurors disbelieved defendant's testimony that she was not driving (i.e., that Martin catapulted from the back seat into the front seat, then over the center console onto defendant's lap, and from that position Martin drove the car out of Marshalls' parking lot), as well as her claim that the car did not hit Officer Taylor. The prosecution's theory of the case was that defendant was the driver. It did not argue alternatively that defendant could be found guilty as an aider and abettor to Martin's driving. Any juror who disbelieved that part of defendant's testimony, thereby concluding that it was defendant who was driving, would not have believed that Taylor shot at defendant through the closed window without any provocation. On the contrary, such a jury would find that, as Taylor testified, Taylor shot only after defendant drove at the officer before Taylor used any force at all.
DISPOSITION
The judgment is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.