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People v. Prescott5/22/2002
ea and ran into an office. Inmate Mowatt denied that after his cell door mysteriously came open he attacked a sergeant in her office. He did, however, admit that after an administrative hearing he was found to have assaulted an officer and was given a SHU (secure housing unit) term at another prison facility, and that at the time of his testimony was still serving his SHU term.
Inmate Trout testified that his cell was right next to appellant's. He heard appellant's cell door open. He saw Officers Bicknell and Garrett standing in front of appellant's cell, and then saw appellant step into view from the direction of his cell. As appellant stepped into view, inmate Trout saw Officer Garrett "taunting him, motioning him come on out." Inmate Trout heard Officer Garrett taunt appellant, " t's your call, do what you got to do." Inmate Trout saw appellant throw an apple to the ground and then Officer Garrett strike appellant in the leg with his baton. The blow caused appellant to fall toward Officer Bicknell, who grabbed appellant by the neck and fell on top of appellant. Officer Garrett struck appellant "a lot of times with the baton."
Both inmate Mowatt and inmate Trout admitted they were friends of appellant. Both Mowatt and Trout were impeached on the basis of their prior felony convictions. Trout had prior convictions for armed robbery, grand theft auto, and residential burglary, and was currently serving a life term for burglary, robbery and murder. Inmate Mowatt had prior convictions for burglary, possession of controlled substances for sale, and was currently serving a sentence for three first degree robberies of an inhabited dwelling.
Prosecution's Rebuttal
Correctional Officer Zermeno was the floor officer assigned to ad/seg on May 9, 2000. While he was removing handcuffs from an inmate he had just returned to his cell, Officer Zermeno noticed Officers Bicknell and Garrett entering the ad/seg unit from the rear entry door. Officer Zermeno also noticed that appellant's cell door was open and appellant had stepped out into the tier. Officer Zermeno overheard either Officer Bicknell or Officer Garrett telling appellant to step back into his cell. He also overheard both officers telling the control booth officer to shut appellant's cell door. While Officer Zermeno watched appellant and the other officers, he saw appellant throw an apple at or toward Officer Bicknell and then saw appellant charge Officer Bicknell. Appellant struck Officer Bicknell in the face, and Officer Bicknell then wrapped his arms around appellant and they both fell to the ground. Officer Garrett struck appellant in the leg with his baton. Officer Zermeno seeing appellant was unrestrained and not under the control of the officers rushed to assist and sprayed appellant in the face with his pepper spray. The spray had no immediate effect on appellant and he continued to struggle with Officers Bicknell and Garrett. Officer Zermeno holstered his pepper spray and grabbed onto appellant's legs. Officers Mojica and Medrano arrived to help subdue appellant. After Officer Medrano gained control of appellant's legs, Officer Zermeno let go of appellant's legs and retrieved leg restraints. It was only after appellant was handcuffed, including the leg restraints, that he quit struggling with the officers.
Sergeant Smith testified concerning the incident with inmate Mowatt, which occurred approximately a month after the incident with appellant. Sergeant Smith testified she was standing next to her desk in her office when inmate Mowatt rushed into the office and physically attacked her.
DICUSSION
I.
FAILURE TO INSTRUCT ON DEFENSE THEORY THAT RESISTING UNLAW
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