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People v. Prescott5/22/2002
way. Answer to question number two is also, yes, it applies only to Bicknell. That's the only one that was charged with battery."
The court further explained that since the apple never struck Officer Bicknell it could not constitute a battery. The court, realizing it had not instructed the jury with CALJIC No. 17.01 (verdict may be based on one of a number of unlawful acts), which requires that the jury unanimously agree on the act which constitutes the offense should they find appellant guilty, read the instruction to the jury. The jury returned to continue their deliberations. Immediately after the jury left the courtroom, appellant's trial counsel raised another issue as to the questions asked by the jury, which had not been resolved by the court's responses. This concerned whether the jury was aware that the charge of obstructing or resisting did not apply to Officer Bicknell. After discussing this with counsel, the court recalled the jury to the courtroom to advise them that count one pertained only to Officer Bicknell, while count two did not pertain to Officer Bicknell but involved the other officers. Juror number three said "Wait." The foreperson then said "Did you want me to ask?" The judge instructed the jurors that if they had another question they would have to go back into the jury room and write out their question. This occurred at 11:45 a.m., at 11:50 a.m. the judge received an additional question from the jury: "Can the battery upon Bicknell have occurred during the scuffle & alleged resist or does it have to be a separate, previous event." At 11:55 a.m. the jury was brought back to hear the answer to their query. In response the court advised the jury:
"The question that the Court has been supplied reads: Can the battery upon Bicknell have occurred during the scuffle and alleged resist? [ ] The answer to that is yes. [ ] Or does it have to be a separate previous event? The answer is no. [ ] It's all part of the same thing. It doesn't have to be a separate previous event."
After receiving the answers to their questions, the jury continued their deliberations. At 12:10 p.m. the court received notice from the jury that they had reached a verdict.
After a review of the record, especially in light of the questions asked by the jury, we cannot say the failure to instruct on the duties of a correctional officer and the right to resist excessive force was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.)
Obstructing Executive Officer
Count two charged appellant with obstructing executive officers (Correctional Officers G. Garrett, J. Zermeno, M. Mojica and Sergeant E. Smith), by means of threats or violence, from performance of their duties. The jury's verdict form included the names of these officers as victims as to count two.
Penal Code section 69 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 such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment."
There are two distinct ways this statute can be violated. The first involves attempting to deter an executive officer from performing a duty imposed by law at some future time. The second involves attempting to deter such an officer from the current performance of a duty imposed by law. The former does not require that the officer be currently eng
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