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People v. Prescott5/22/2002
duct of the officers amounts to cruel and unusual punishment. In a criminal prosecution, at least in this context, appellant had neither the burden of proof, nor the burden of persuasion, on this issue. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1214-1215.) "Self-defense negates culpability for assaultive crimes, whether or not the assault results in death. [Citations.] In either event self-defense goes directly to guilt or innocence. [Citations.] On matters directly going to guilt or innocence, the burden of persuasion is on the state. [Citations.]" (People v. Adrian (1982) 135 Cal.App.3d 335, 340-341.) "However, once the prosecution has submitted proof that permits a finding beyond reasonable doubt on every element of a charge, the accused may obviously be obliged to respond with evidence that "raises" or permits a reasonable doubt that he is guilty as charged." (People v. Gonzalez, supra, at p. 1215.) It was therefore sufficient for appellant to come forward with sufficient evidence to warrant instruction on his right to use self-defense and its application to the elements of the offenses.
Here no instruction was given as to the respective duties of a correctional officer or an inmate, nor was the jury instructed on when appellant's right to exercise self-defense was justifiable, i.e., in defense to the use of excessive force.
The testimony of the two defense witnesses contradicted the prosecution's witnesses as to how the incident of May 9, 2000 began. The defense version was that after appellant stepped from his cell, Officer Garrett struck appellant in the leg with his baton, while Officer Bicknell employed a chokehold on appellant, forcing him to the ground.
California Code of Regulations, title 15, section 3268, governs the use of force by custodial officers. This regulation, in pertinent part, states:
"The purpose of this Section is to set forth Department of Corrections policy governing the use of force. The policy has its foundation in California Penal Code statutes and relevant case decisions.
"(a) Definitions.
"(1) Reasonable Force:
"The force that an objective, trained and competent correctional employee , faced with similar facts and circumstances, would consider necessary and reasonable to subdue an attacker, overcome resistance, effect custody, or gain compliance with a lawful order.
"(2) Unnecessary Force:
"The use of force when none is required or appropriate.
"(3) Excessive Force:
"The use of more force than is objectively reasonable to accomplish a lawful purpose.
"(4) Non-Deadly Force:
"Any use of force that is not likely to result in death.
"(5) Deadly Force:
"Any use of force that is likely to result in death.
"(6) Use of Force Options:
"(A) The choices available to an employee when selecting a reasonable force option.
"(B) The choices include, but are not necessarily limited to: verbal persuasion or orders; physical strength and holds; chemical agents and/or other immobilization devices; handheld batons; less-lethal weapons or firearms. [ ]...[ ]
"(b) It is the policy of the Department of Corrections to accomplish the custodial and correctional functions with minimal reliance on the use of force. Employees may use reasonable force as required in the performance of their duties, but unnecessary or excessive force shall not be used." (Cal. Code Regs., tit. 15, § 3268, italics added.)
This regulation thus defines, in the context of custodial situations, what is excessive force and when a custodial officer may use re
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