 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Prescott5/22/2002
the victim away. Because the concrete was wet and the victim was wearing leather sole shoes, the victim slipped striking his head on the concrete causing serious neurological injury. The prosecution's version was that the defendant punched the victim in the face, knocking him out, which resulted in the victim falling to the concrete and suffering serious injury.
On appeal defendant contended the "instruction on self-defense against an assault (CALJIC No. 5.30) should have been modified to say that a person may, in appropriate circumstances, use reasonable force to resist a battery even when he has no reason to believe he is about to suffer bodily injury." (People v. Myers, supra, 61 Cal.App.4th at p. 330.) We agreed and reversed his convictions, finding the failure to give the modified instruction, as requested, resulted in prejudice to the defendant. Part of our reasoning was based upon the jury's determination finding defendant guilty of the lesser included offense of simple assault (Pen. Code, § 240), as well as the conflicting versions of what occurred. The defendant, if his version were correct, had the right to use reasonable force to prevent the unwanted touching (poking). A push, without more, could be considered reasonable, and thus warrant an acquittal of the charges. The prosecution argued against the modified instruction, contending defendant could only use reasonable force if defendant had a reasonable belief he was going to suffer bodily injury from the victim. We found that under the particular facts of this case, the defendant was entitled to use reasonable force to stop the unwanted and offensive touching, i.e., the poking (which constituted a battery, whether in tort or in criminal law).
"It follows that an offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to resist with such force as is reasonable under the circumstances. The same may be said of an assault insofar as it is an attempt to commit such a battery. To hold otherwise would lead to the ludicrous result of a person not being able to lawfully resist or defend against a continuing assault or battery, such as the act defendant alleged here." (People v. Myers, supra, 61 Cal.App.4th at p. 335, fns. omitted.)
This is not to say that appellant was entitled to use force to resist the correctional officers in this particular case, simply because they touched him, as that is not the law in custodial settings. However, is it illustrative of how the failure to provide adequate instructions on the right to use self-defense can affect the truth finding process, and our ability to conclude the error was harmless.
In People v. Perez (1970) 12 Cal.App.3d 232, this court upheld a defendant's conviction for battery on a peace officer. (Pen. Code, § 243.) The defendant had been arrested for driving while intoxicated and was being booked when the incident occurred. There were two different versions of what occurred during the booking procedure. The officer's account, which was supported by other witnesses, was that while trying to fingerprint the defendant, the defendant jerked his hand away, lost his balance and fell against the booking machine injuring himself. The defendant's version was that the officer had grabbed him by the hair and slammed his face into the booking desk. Uncontradicted testimony established that after the defendant was injured defendant obtained change from the officer and made a phone call. After placing his call, defendant picked up a stool and struck the officer in the head, while the officer's back was turned. Defendant complained on appeal he was entitled to instructions on self-defense and resistance to excessiv
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|