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People v. Prescott5/22/2002
e force. We disagreed. The basis for our conclusion was the interval between the injury to the defendant and the injury to the officer. Assuming defendant's version of how his injury occurred was true, at the time he inflicted the blow to the officer he was not being subjected to excessive force. The time interval between the alleged use of excessive force by the officer and defendant's retaliatory assault precluded the giving of the instructions. "When that danger has passed and the attacker has withdrawn, there can be no justification for the use of further force. [Citations.]" (Id. at p. 236.)
Here there was evidence, which if believed, would support a conclusion that the correctional officers may have used excessive force against appellant. Additionally, Officer Zermeno initially sprayed appellant with pepper spray while Officers Bicknell and Garrett were struggling with appellant. However, the court provided no specific instruction applicable to the appellant's right to lawfully resist the application of excessive force. Similarly, there was no instruction on the relationship between this valid defense and the elements of the crimes appellant was charged with committing. That this error is not one we can conclude was harmless beyond a reasonable doubt is evident from the questions presented by the jury on when the battery occurred, i.e., when appellant charged and struck Bicknell or whether it occurred during the time the other correctional officers interceded to restrain appellant. Had the jury been instructed on the lawful resistance of excessive force, they may very well have concluded that appellant was not the initial aggressor, as is evident from their question as to when the battery could have occurred. Had they been instructed on this point, they should have also received instruction on the relationship between this defense and the elements of the obstructing charge as well. If appellant was initially lawfully resisting the application of excessive force by Correctional Officers Bicknell and Garrett, it follows his continued resistance to the other officers, including Garrett, who aided in subduing him would not constitute a crime. If neither Officers Bicknell or Garrett were privileged to use force initially, then neither would the other officers be privileged to use force in subduing appellant. While we do not mean to imply that the assisting correctional officers were also using excessive force, we cannot conclude that at some point during this incident appellant should have realized he was acting unlawfully by continuing to resist. The testimony showed that immediately after appellant was brought down to the ground, Correctional Officer Zermeno employed his pepper spray in order to force appellant into submission, and that other officers assisted in restraining appellant's legs, eventually being able to shackle appellant, whereupon he ceased all resistance. However, if appellant was justified in initially resisting the application of excessive force, it seems clear to us that his continued resistance to other assisting officers was the result of the original use of excessive force. This is not a case where the guards used excessive force, the inmate resists and then all activity ceases and then other officers come and lawfully, without the use of excessive force, subdue the inmate. Under those circumstances we would see a clear demarcation between the conduct of the inmate and the officers. In that situation the inmate's initial reaction in resisting the use of excessive force would be privileged. However, because of the break in the sequence of events, renewed resistance to officers who were not using excessive force to gain control or custody of the inmate would be sufficient to constitute the cri
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