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People v. Prescott5/22/2002
The first calls for analysis under Watson, the second calls for analysis under Chapman.
In the context of a failure to instruct on a lesser included offense, in a non-capital case, the error is one under the state Constitution, and is subject to the Watson reasonably probable test. (People v. Breverman, supra, 19 Cal.4th at p. 165.) However, failure to instruct on an element of the crime charged is an error under the federal Constitution.
"The federal Constitution's Fifth Amendment right to due process and Sixth Amendment right to jury trial, made applicable to the states through the Fourteenth Amendment, require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime. [Citation.] Thus, a trial court's failure to instruct on an element of a crime is federal constitutional error [citation] that requires reversal of the conviction unless it can be shown `beyond a reasonable doubt' that the error did not contribute to the jury's verdict [citations]." (People v. Sengpadychith (2001) 26 Cal.4th 316, 324-325, italics omitted.)
We must therefore review the charges against appellant to determine whether the failure to instruct involved the removal of an element from the jury's consideration as to appellant's guilt.
Battery on a Correctional Officer
Count one charged appellant with battery on a nonconfined person, i.e., Officer Bicknell, in violation of Penal Code section 4501.5.
"Every person confined in a state prison of this state who commits a battery upon the person of any individual who is not himself a person confined therein shall be guilty of a felony and shall be imprisoned in the state prison for two, three, or four years, to be served consecutively." (Pen. Code, § 4501.5.)
In order to establish appellant's guilt of this offense the prosecution was required to prove:
"1. A person used force or violence upon [Correctional Officer Bicknell];
"2. The use of force was willful [and unlawful];
"3. The person who used force or violence was at the time confined in a state prison of this state; and[ ]
"4. The person upon whom the force or violence was inflicted was not at the time confined within that prison.
"[and as pertinent to appellant's contention] [The use of force or violence is not unlawful when done in lawful [self-defense] [defense of others]. The burden is on the People to prove that the use of force or violence was not in lawful [self-defense] [defense of others]. If you have a reasonable doubt that the use of force or violence was unlawful, you must find the defendant not guilty]." (CALJIC No. 7.37, italics added.)
On this point, the jury was properly instructed. In addition, the jury was instructed on appellant's right to self-defense. (CALJIC Nos. 5.30 [self-defense against assault]; 5.50 [self-defense-assailed person need not retreat]; 5.51 [self-defense-actual danger not necessary]; 5.52 [self-defense-when danger ceases]; 5.54 [self-defense by an aggressor]; and 5.55 [plea of self-defense may not be contrived].) However, as conceded by respondent, the jury was not instructed on the issue of whether appellant could lawfully resist the use of excessive force, nor was the jury instructed on what constitutes the lawful performance of the correctional officers' duties. (See CALJIC Nos. 9.28, 9.29, 16.103, 16.106.) Since the burden was on the People to prove beyond a reasonable doubt appellant's resistance was not lawful self-defense, there should have been further instruction on the principles of when lawful self-defense could have been exercised by appellant.
In People v. Coleman (19
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