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People v. Prescott5/22/2002
FUL USE OF FORCE IS NOT A CRIME
"Appellant contends the jury was not instructed on general principles of law necessary to its understanding of the issues in this case." Specifically, appellant contends the court did not apprise the jury that appellant could not be guilty of violating Penal Code section 69 if they found he was resisting officers who were acting unlawfully. Appellant also asserts the court failed to instruct the jury that appellant could not be guilty of battery or resisting if appellant was using reasonable force to resist excessive force used by the officers. Appellant contends these failures denied him due process of law under the Fourteenth Amendment and these errors must be evaluated under the analysis as set forth in Chapman v. California (1967) 386 U.S. 18.
He specifically asserts:
"The court did not, in addition [to giving a modified version of CALJIC No. 7.50], instruct the jury that a necessary element of the crime of resisting an executive officer is that the officer be acting lawfully at the time the defendant offers him resistence. Neither did the court instruct the jury that a defendant may lawfully use reasonable force to resist excessive force employed by executive officers or that use of reasonable force to resist excessive force is a defense to the charge of resisting an executive officer. Finally, the court did not supplement CALJIC 7.50 with an instruction on the definition of the phrase `performance of duty.'"
Respondent concedes the court failed to instruct the jury on applicable principles of law pertinent to the charges levied against appellant. Respondent asserts, however, that any error was harmless beyond a reasonable doubt and appellant's convictions must be affirmed.
The resolution of appellant's contention requires our review of both charges of which appellant was convicted, battery on a correctional officer and obstructing an executive officer in the performance of their duties. We also review the evidence to determine if the instructions not given were warranted.
Trial courts have a sua sponte duty to instruct on all principles of law relevant to the case before them, including the elements of the crimes, applicable defenses and the relationship between the elements and defenses. (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) As to the duty to instruct on defenses, the court only needs to instruct on defenses "if 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." (People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on other points in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12, People v. Breverman (1998) 19 Cal.4th 142, 178, fn. 26.) "Substantial evidence is evidence sufficient to `deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive. [Citation.]" (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) "The testimony of a single witness, including the defendant, can constitute substantial evidence requiring the court to instruct on its own initiative. [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 646.)
Assuming there was error in failing to instruct, we must also decide under which test the error must be evaluated, the "reasonably probable" test of People v. Watson (1956) 46 Cal.2d 818, 836, or the "harmless beyond a reasonable doubt" test of Chapman v. California, supra, 386 U.S. 18. A determination of which standard is applicable, turns upon whether the errors complained of were errors involving a state constitutional right or a federal constitutional right.
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