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People v. Prescott5/22/2002
asonable force. The trial court here should have fashioned an instruction which encompasses the foregoing, as well as instructed the jury with an instruction such as the one used in People v. Coleman, supra, 84 Cal.App.3d 1016, or derived from CALJIC No. 9.28 (use of excessive force by officer); CALJIC No. 9.29 (performance of duties of officer-burden of proof); CALJIC No. 16.103 (discharge or performance of duties-defined); CALJIC No. 16.106 (arrest or detention-use of reasonable force-duty to submit); CALJIC No. 16.110 (performing or discharging duties of officer-burden of proof); or CALJIC No. 16.111 (use of excessive force by officer).
Had these instructions been given they would have provided clarification of the instructions given on the right of self-defense. Absent these instructions the jury was not provided with the legal justification to support appellant's claim of self-defense. It is apparent from the questions submitted by the jury that at least one member of the jury expressed some concern as to when the battery occurred, whether during the initial encounter or subsequently during the period when officers were attempting to subdue appellant. This evidences some indication that members of the jury had seriously considered the testimony of inmates Mowatt and Trout as to the use of the baton blows to appellant's leg and the chokehold employed by Officers Garrett and Bicknell.
The jury requested clarification on the charges against appellant on at least three occasions during the course of their deliberations. The first of these inquiries came at 9:35 a.m. The jury requested: "Legal definition of battery; Legal definition of resisting; charges; Elements for conviction/non-conviction."
Penal Code section 1138 requires the court address questions presented by the jury after they have commenced their deliberations:
"After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." (Pen. Code, § 1138.)
There is nothing in the appellate record to show that the attorneys were even contacted concerning this first set of inquiries, or that the jury's questions therein were ever addressed. In fact the court's minutes for January 10, 2001, do not even reflect the receipt of these first questions by the court. However, as indicated, the written questions are present in the clerk's transcript.
"The trial court has a duty to help the jury understand the legal principles the jury is asked to apply. [Citation.] In particular, under section 1138 the court must attempt `to clear up any instructional confusion expressed by the jury.' [Citation.] But ` his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.' [Citations.] In exercising that discretion, the trial court `must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.' [Citations.]" (People v. Giardino (2000) 82 Cal.App.4th 454, 465, italics omitted.)
Appellant contends the failure of the court to respond to the jury's questions
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