Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR559293.
Lambden, J.
A jury found defendant guilty of two felony battery charges (Pen. Code, § 243.1), and four misdemeanor battery charges (§ 242). Defendant contends that the two felony battery convictions must be reversed based on insufficient evidence supporting the convictions and instructional error. We are not persuaded by defendant’s arguments and affirm the judgment.
All unspecified code sections refer to the Penal Code.
BACKGROUND
The Charges
An information was filed on May 29, 2009. The first count was for attempted robbery (§§ 664/211). Counts 2 and 3 were for felony battery upon a custodial officer (§ 243.1). Counts 4 through 7 were for misdemeanor battery (§ 242). Defendant pleaded not guilty and the case proceeded to a jury trial.
The Misdemeanor Batteries
At the jury trial, Andrew Schmidt, a security guard at Montgomery Village in Santa Rosa, testified. He explained that he had been a security officer at Montgomery Village for about three and one-half years.
Schmidt recounted that on April 21, 2009, he received a phone call from one of the merchants at Montgomery Village. The merchant complained about an aggressive panhandler in the parking lot at the shopping center. Schmidt went to the location described by the merchant and spotted defendant. He told defendant that he had received a complaint about his panhandling and asked him to leave. Defendant responded that he was not bothering anyone. Schmidt noticed that defendant’s speech was slurred; he believed defendant was intoxicated.
After Schmidt asked defendant to leave, defendant became aggressive and “adopted a fighting stance[.]” He came towards Schmidt with clenched fists and his chest out. Schmidt called the police.
At this time, there were three vehicles with related people in the parking lot at Montgomery Village. One of the vehicles belonged to Gerardo Razo (Gerardo), who was there with his wife, Alexis Razo (Alexis), and two of his children, Stefan and Natalia. At the time, Stefan was three years old and Natalia was four or five months old. While Gerardo was at Montgomery Village, Christopher Adam Jordan (Christopher), arrived at the shopping center with his 12-year-old son and 10-year-old daughter. Additionally, Christopher’s mother, who was also Alexis’s aunt, Debra Jordan (Debra), was at the shopping center in a third car.
Alexis had Natalia in her right arm and stood between the cars of Christopher and Debra. Defendant approached and asked for money. Gerardo said that he did not have any money; Christopher gave him some money. Alexis also gave him some change from her purse.
Defendant remained and Christopher told him to leave. Alexis turned and spoke to Debra. Defendant turned and pressed against Alexis, who was still holding her baby. Defendant tried to grab Alexis’s purse from her shoulder, but was unable to get it. Defendant scratched Alexis’s arm while trying to remove the purse. Christopher jumped out of the car. Gerardo told Alexis to hand him the baby and told defendant to back off.
Gerardo repeatedly told defendant to leave. Gerardo and Christopher moved between defendant and Alexis. Defendant started coming toward Gerardo. Gerardo handed his daughter back to Alexis. Defendant continued to come toward Gerardo. Gerardo pushed defendant back and told him that they did not want to hurt him. Defendant tried to grab Christopher, and Christopher pushed him away and hit him. Defendant threw punches at Christopher and Christopher kicked him. Defendant then approached Gerardo, and Gerardo hit defendant. Gerardo reported that he hurt his hand and sustained some tiny scratches on his forehead during the scuffle.
Schmidt observed defendant’s hitting Christopher and Gerardo; he again called the police. He saw defendant walking away. Defendant then came back toward Schmidt. According to Schmidt, defendant looked “[a]gitated, aggressive, [and] belligerent.” Schmidt stepped behind a bench and told defendant that the police were coming. Defendant jumped over the bench and grabbed Schmidt’s shirt. He held onto the shirt for a few seconds. When Schmidt backed away, defendant lost his grip.
Defendant then went after Andy Birrell, a janitor who was emptying garbage. Defendant began to push, shove, and hit Birrell. Defendant pulled him to the ground and a struggle ensued. Schmidt, Christopher, and Gerardo attempted to pull defendant off of Birrell.
Sergeant Goldschlag arrived at Montgomery Village. He found defendant shirtless, bleeding, and injured in several places. Defendant had abrasions on his left cheek and right elbow. His left knee was bleeding, and both of his lips were swollen. Defendant, according to Goldschlag, smelled of alcohol, had bloodshot and glossy eyes, and had thick speech.
Goldschlag told defendant to sit down, which he did. Defendant said that he had not been in a fight and reported that he received his injuries from living on the street. Defendant refused treatment when medical personnel arrived. Goldschlag handcuffed defendant.
The Felony Batteries
Officer Brian Mann took custody of defendant and transported defendant to the local jail. When Mann drove into the sally port of the jail, he removed defendant from his patrol car and walked him to one of the benches. Defendant refused to sit down. Mann forced defendant to sit by using a pressure point to apply pain for a couple of seconds. Defendant still kept trying to get up. Defendant continued to refuse to sit and Mann grabbed him by the hair and forced him to lie face down on the cement area between a railing and the benches.
Correctional officers arrived and Mann let them take over. One of the correctional officers was Jason Cummesky, who worked for the Sonoma County Sheriff’s Department. He was wearing a uniform when he came over to assist with the handling of defendant.
Cummesky placed his right knee on defendant’s back and his left knee on defendant’s right leg, trying to hold defendant down. Deputy Francisco Flores and Deputy James Schiavone also arrived. Schiavone was in uniform. Schiavone testified that he was employed by the Sonoma County Sheriff’s Department as a correctional deputy at the Main Adult Detention Facility. At the time of defendant’s trial, he had been working there for about five years. He testified that he was responsible for operating the county jail and for maintaining custody of the prisoners at the main jail.
Defendant started to kick and lash out at the correctional officers who were trying to hold him down. Other correctional officers arrived to assist. Defendant kicked Schiavone in the chest, and Schiavone hit his head on the guardrail.
At this point, Deputy Thomas Bennett and a sergeant arrived. Bennett testified that, for over 10 years, he had been working for the detention division of the Sonoma County Sheriff’s Department as a correctional deputy at the county jail. He helped operate the jail and was responsible for maintaining the custody of prisoners. Bennett knew defendant from prior contacts with him. He spoke to him and tried to calm him down.
Defendant kicked Bennett in the groin. Bennett described the pain from being kicked in the groin as “really bad.” Bennett went for medical treatment and could not move for two and one-half days; he missed work for three or four days.
The correctional officers eventually were able to get defendant into waist restraints and were able to search him.
The Defense
Defendant testified. He said that he was homeless, and that he had a problem with alcohol. On April 21, 2009, defendant had been drinking beer in the morning and later he had vodka with his friends. Defendant stated that he vaguely remembered panhandling at Montgomery Village that day. Defendant claimed to be shocked that Alexis had given him money and tried to express his gratitude by hugging her. While hugging her, he reached around her with his right hand, trying to avoid the baby. She moved away from him and two males came after him and started to hit him. He testified that he tried to defend himself. He denied trying to take Alexis’s purse. He also did not remember ever fighting with the janitor or with Schmidt.
Defendant remembered trying to stand up at jail. An officer grabbed him and threw him to the ground. His face hit the floor and he was in pain. He remembered that a number of people were on him and one of his feet was bent back, which hurt. Defendant tried to unbend his foot to lessen the pain. He testified that he was in a panic.
The Verdict, Sentence, and Appeal
The jury was unable to reach a verdict on count one, attempted robbery, and the court declared a mistrial on that count. The jury found defendant guilty of the four misdemeanor batteries and the two felony batteries against Bennett and Schiavone. The court sentenced defendant to serve the upper term of three years for battery upon Bennett, and to a consecutive subordinate term of eight months for battery on Schiavone. The court also ordered defendant to serve four concurrent six-month terms for the four misdemeanor batteries. The court then suspended execution of the sentence and placed defendant on formal probation for a period of three years.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant does not mount any challenge to the four misdemeanor battery convictions. Rather, he objects only to his felony battery convictions involving custodial officers Bennett and Schiavone (§ 243.1). He maintains that these felony convictions must be reversed because they were not supported by sufficient evidence and the court committed three separate instructional errors.
I. Sufficient Evidence Supported the Felony Battery Convictions
A. Standard of Review
A criminal conviction that is not supported by substantial evidence violates the Fourteenth Amendment to the United States Constitution and/or the due process clause of article I, section 15 of the California Constitution. (People v. Rowland (1992) 4 Cal.4th 238, 269.) In reviewing a challenge to the sufficiency of the evidence, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “If the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) “Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom.” (People v. Dooley (2010) 189 Cal.App.4th 322, 326.)
B. Felony Battery Under Section 243.1
The jury found defendant guilty of felony battery of Bennett and Schiavone under section 243.1. Section 243.1 provides the following: “When a battery is committed against the person of a custodial officer as defined in Section 831 of the Penal Code, and the person committing the offense knows or reasonably should know that the victim is a custodial officer engaged in the performance of his or her duties, and the custodial officer is engaged in the performance of his or her duties, the offense shall be punished by imprisonment in the state prison.”
Defendant does not mount a challenge to the findings that defendant committed batteries against Bennett and Schiavone, but limits his objection to the finding that the batteries were felonies under section 243.1. Defendant argues that the evidence did not show that either of them was a custodial officer or that he knew they were custodial officers as required under section 243.1. We conclude that the evidence supported findings that Bennett and Schiavone were custodial officers and that defendant knew or should have known that they were custodial officers.
C. Evidence that Bennett and Schiavone Are Custodial Officers
Section 831, subdivision (a), defines a custodial officer as “a public officer, not a peace officer, employed by a law enforcement agency of a city or county who has the authority and responsibility for maintaining custody of prisoners and performs tasks related to the operation of a local detention facility used for the detention of persons usually pending arraignment or upon court order either for their own safekeeping or for the specific purpose of serving a sentence therein.”
The other subdivisions of section 831, read as follows: “(b) A custodial officer shall have no right to carry or possess firearms in the performance of his or her prescribed duties.
In the present case, evidence submitted at trial clearly satisfied the first and second elements of section 831, subdivision (a). With regard to the first element that Schiavone and Bennett were public officers, but not peace officers, the record contains no evidence that Schiavone or Bennett fit any of the definitions of peace officers listed in section 830 et seq. Both Schiavone and Bennett testified that they were employed by a law enforcement agency of the Sonoma County Sheriff’s Department, which satisfied the second element set forth in subdivision (a) of section 831.
The last requirement under section 831, subdivision (a), is that the officer have the authority and responsibility for maintaining custody of prisoners and performing tasks related to the operation of a local detention facility used for the detention of persons usually pending arraignment or upon court order either for their own safekeeping or for the specific purpose of servicing a sentence. This element “relates to the officer’s tasks and responsibilities.” (People v. Garcia (1986) 178 Cal.App.3d 887, 896 (Garcia).) Schiavone testified that he was responsible for operating the county jail and for maintaining custody of the prisoners at the main jail. Bennett testified that he helped operate the jail and was responsible for maintaining the custody of prisoners.
The foregoing evidence amply supported a finding that Schiavone and Bennett were custodial officers within the meaning of section 831.
Defendant does not dispute that substantial evidence supports the elements set forth in section 831, subdivision (a). However, he contends that the definition of a custodial officer includes the training required of a custodial officer as specified in section 831, subdivision (c). Section 831, subdivision (c) states that each custodial officer “shall, within 90 days following the date of the initial assignment to the position, satisfactorily complete the training course specified in section 832.” Additionally, it provides that a custodial officer “shall, within one year following the date of the initial assignment as a custodial officer, have satisfactorily met the minimum selection and training standards prescribed by the Board of Corrections pursuant to Section 6035.” Defendant maintains that the evidence did not establish that Schiavone and Bennett completed training as required by section 832 or met the minimum selection and training standards prescribed by the Board of Corrections pursuant to section 6035.
We do not agree with defendant that the definition of a custodial officer for purposes of establishing a battery under section 243.1 includes a requirement to show that the custodial officer complied with the training requirements set forth in section 832, subdivision (c). Indeed, defendant has provided absolutely no authority to support this argument.
Only subdivision (a) of section 831 addresses the elements necessary to establish that a person is a custodial officer. Courts have uniformly defined a custodial officer, as the term is used in section 243.1, as set forth in section 831, subdivision (a). (See People v. Wilkinson (2004) 33 Cal.4th 821, 830; Garcia, supra, 178 Cal.App.3d at pp. 894-895.) Indeed, our Supreme Court observed, “Section 831, subdivision (a)... defines a ‘custodial officer’ as ‘a public officer, not a peace officer, employed by a law enforcement agency of a city or county who has the authority and responsibility for maintaining custody of prisoners and performs tasks related to the operation of a local detention facility used for the detention of persons usually pending arraignment or upon court order either for their own safekeeping or for the specific purpose of serving a sentence therein.’ ” (People v. Wilkinson, supra, at p. 830, italics added.) The Supreme Court did not suggest that the elements defining a person as a custodial officer for purposes of section 243.1 included the training of the person or any other element specified in section 831, subdivisions (b) through (f).
Defendant argues that the court in Garcia, supra, 178 Cal.App.3d 887 cannot be cited to support the position that the definition of a custodial officer for the purposes of section 243.1 is limited to subdivision (a) of section 831. He declares that the Garcia court did not have to consider whether the other subdivisions in section 831 applied. Further, he claims that the language in Garcia supports his position that all of the subdivisions in section 831 must be considered when defining a custodial officer. In his reply brief in this court, defendant writes: “Yet, even the Garcia court referenced the subdivisions other than subdivision (a) without specifying them: ‘Section 831, by its own provisions... specifies the training necessary for that position.’ ([Garcia, supra, ] at p. 895; italics added.)”
Defendant’s argument in this court is misleading and disingenuous. Defendant excises a critical portion of the quotation from Garcia. The complete and accurate quote from Garcia does not support defendant’s position. The Garcia court stated, “Section 831, by its own provisions, defines the position of ‘custodial officer, ’ outlines the powers and duties of persons holding that position, and specifies the training necessary for that position.” (Garcia, supra, 178 Cal.App.3d at p. 895.) Thus, the Garcia court makes it clear that this statute and its various subdivisions address the definition of custodial officer, the powers and duties of custodial officers, and the training for a custodial officer. This statement confirms that the Garcia court considered the subdivision related to the training of a custodial officer as distinct from the subdivision concerned with defining a custodial officer.
Section 243.1 was enacted to create a greater punishment “for different classes of victims, including ‘custodial officers[.]’ ” (In re Rochelle B. (1996) 49 Cal.App.4th 1212, 1217-1218.) Thus, the focus is on whether the victim falls into the category protected, not whether the person has fulfilled the training requirements for the position. It is immaterial whether Schiavone or Bennett had met their training requirements as defendant attacked them while they were performing their supervisory duties as custodial officers in a detention facility. It was the performance of their duties as custodial officers that entitled them to the greater protections deemed necessary by the Legislature.
Accordingly, we conclude the record contains substantial evidence to support findings that Schiavone and Bennett are custodial officers.
D. Evidence that Defendant Knew or Reasonably Should Have Known that Bennett and Schiavone Were Custodial Officers
Defendant contends that the evidence did not show that he knew Schiavone and Bennett were custodial officers engaged in the performance of their duties at the time he battered them. He claims that he was too intoxicated to know who they were. Additionally, he argues that he was being held face down on the ground and could not see or know that Schiavone and Bennett, two of many men involved in the incident, were custodial officers.
With regard to defendant’s argument that he was too intoxicated to appreciate that he was striking at custodial officers, defendant ignores that the requirement under section 243.1 is not knowledge. The prosecution did not have to show that defendant knew Schiavone and Bennett were custodial officers, but simply had to establish that defendant “reasonably should” have known (§ 243.1) that they were custodial officers. A defendant’s voluntary intoxication is not a defense to the question whether defendant should have known that the victims of the batteries were custodial officers in the execution of their duties. (See People v. Finney (1980) 110 Cal.App.3d 705, 713-714.) Voluntary intoxication is not, ordinarily, a defense to a general intent crime. (People v. Parks (1971) 4 Cal.3d 955, 960.)
Defendant neglects to explain how his intoxication related to whether he reasonably should have known that the victims were custodial officers. This knowledge could be established based on what a reasonable––i.e., a sober––person would have known. (People v. Finney, supra, 110 Cal.App.3d at pp. 713-714; see also People v. Whalen (1973) 33 Cal.App.3d 710, 717 [“it would be anomalous to allow evidence of intoxication, whether from the consumption of alcohol or drugs, to relieve a man of responsibility for viciously attacking a police officer with a deadly weapon when he reasonably should have known that the victim was a police officer; such crimes are frequently committed in just such a manner”].) Thus, even if we presume that defendant was too intoxicated to know that Bennett and Schiavone were custodial officers, the question is whether he “reasonably should” have known that the victims were custodial officers (§ 243.1).
The evidence was overwhelming that defendant reasonably should have known that Schiavone and Bennett were custodial officers. Defendant’s scuffle with the custodial officers lasted for more than 10 minutes; defendant knew he was at the jail and that he was supposed to sit down. When Mann had difficulty getting defendant to sit down, other correctional officers came over to assist. These correctional officers were in their uniform and, according to Mann, were in plain view of defendant. Cummesky testified that when he entered the sally port, in uniform, defendant was standing up. Cummesky was in plain view when he approached defendant.
Schiavone and Bennett both testified that they were in their uniforms when defendant battered them. Bennett testified that, even though defendant was on the ground, his head was being held by Cummesky and, other than Schiavone, defendant had a clear view of everyone. Further, Bennett talked to defendant to try to calm him down. Bennett knew defendant and had previous contacts with him. The previous conversations he had with defendant were in the “context” of Bennett’s “being a correctional officer[.]” Defendant argues that there was no evidence that he knew Bennett from his prior encounters, but Bennett testified that defendant saw him and had interacted with him previously and the jury could infer from the evidence that defendant did recognize and know Bennett.
Even though the evidence indicates that defendant did not specifically see Schiavone, the record establishes that he knew he was in jail, knew he was disobeying the repeated orders to sit down, saw and heard the voice of the uniformed Bennett who he knew was a custodial officer from his prior interactions with him, and saw that the people attempting to restrain him were in uniform. Accordingly, even if defendant did not actually know that he was combating custodial officers, the evidence amply supported a finding that he reasonably should have known that the victims of his kicking and battering were custodial officers.
II. The Instructions Regarding the Felony Batteries
Defendant contends that the lower court committed three prejudicial instructional errors. He asserts that the court sua sponte should have provided an instruction defining a custodial officer that included the training required for such a position. He also argues that the court should have sua sponte given CALCRIM No. 2671 and advised that simple battery is a lesser-included offense of felony battery. For the reasons discussed below, none of these alleged errors warrants a reversal of either of the felony battery convictions.
A. Standard of Review
“Since principles of due process protect the accused against conviction except upon proof beyond a reasonable doubt [citation], an instruction to the jury which has the effect of reversing or lightening the burden of proof constitutes an infringement on the defendant’s constitutional right to due process. [Citations.]” (People v. Saddler (1979) 24 Cal.3d 671, 679-680.)
On appeal, we review issues of instructional error de novo. (E.g., People v. Alvarez (1996) 14 Cal.4th 155, 217.) Specifically, “ ‘[i]n considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.’ [Citation.] We determine the correctness of the jury instructions from the entire charge of the court, not from considering only parts of an instruction or one particular instruction. [Citation.]” (People v. Smith (2008) 168 Cal.App.4th 7, 13.) A trial court has a sua sponte duty to instruct on a recognized defense that is supported by substantial evidence if the defendant is relying on that defense or the defense is not inconsistent with the defense theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) There is no duty to instruct sua sponte on a defense theory of the case if the evidence supporting the defense is only “ ‘minimal and insubstantial.’ ” (People v. Barnett (1998) 17 Cal.4th 1044, 1152.)
In determining whether the trial court committed an instructional error, we must examine the evidence in the light most favorable to the appealing party. (People v. Young (1963) 214 Cal.App.2d 641, 645.) We may reverse on appeal based on instructional error only if the error was prejudicial. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Thus, we may reverse only if “ ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred.” (People v. Breverman (1998) 19 Cal.4th 142, 178.)
B. Instructions Given
With regard to counts two and three, battery upon custodial officers Bennett and Schiavone (§ 243.1), the court gave CALCRIM No. 946, as follows: “Now we have counts II and III, which is battery against a custodial officer. To prove the defendant guilty of this crime, the People must prove that, one, Thomas Bennett and James Schiavon[e] were custodial officers performing the duties of a custodial officer.
“Two, the defendant willfully touched Thomas Bennett and/or James Schiavon[e] in a harmful or offensive manner.
“And three, when the defendant acted, he knew or reasonably should have known that Thomas Bennett and James Schiavon[e] were custodial officers who were performing their duties.
“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. The slightest touching can be enough to commit the battery that is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. The touching can be done indirectly by causing an object or someone else to touch the other person.
“A custodial officer is someone who works for a law enforcement agency of a city or county, is responsible for maintaining custody of prisoners, and helps operate a local detention facility. A county jail is a local detention facility.”
The trial court also instructed the jury that, for counts 2 and 3, the lesser-included offense was simple assault, and then proceeded to provide the elements of simple assault. The court gave a standard instruction on simple battery as the offense charged in counts four through seven, but did not identify the crime of simple battery as a lesser-included offense for the felony battery offenses charged in counts 2 and 3.
The court also gave an instruction on self-defense. In connection with this instruction, the court gave defendant’s requested special instruction on the use of excessive force.
C. Alleged Errors
1. The Court’s Instruction Defining a Custodial Officer
Defendant complains that the court did not provide adequate instructions of the definition of a custodial officer as defined in section 831. As discussed above, “[u]nder section 831, a custodial officer is (1) a public officer, not a peace officer; (2) employed by a law enforcement agency of a city or county; (3) who has the authority and responsibility for maintaining custody of prisoners and performing tasks related to the operation of a local detention facility used for the detention of persons usually pending arraignment or upon court order either for their own safekeeping or the specific purpose of serving a sentence.” (Garcia, supra, 178 Cal.App.3d at p. 894.) The court’s instruction set forth all three of these elements as it told the jurors that they had to find that Schiavone and Bennett worked for a law enforcement agency of a city or county, that they were responsible for maintaining custody of prisoners, and that they helped operate a local detention facility. The jurors were specifically advised that a county jail is a local detention facility.
Defendant argues that the trial court had to instruct the jury about the training required of custodial officers that is specified in section 831, subdivision (c). As discussed earlier, only subdivision (a) of section 831 sets forth the elements necessary to define a person as a custodial officer and defendant’s argument that the court had to include subdivision (c) of section 831 in its instruction defining a custodial officer has no merit.
2. The Court’s Failure to Give CALCRIM No. 2671
Defendant contends that the court had a sua sponte duty to give CALCRIM No. 2671. CALCRIM No. 2671 provides as follows: “The People have the burden of proving beyond a reasonable doubt that <insert name, excluding title> was lawfully performing (his/her) duties as a custodial officer. If the People have not met this burden, you must find the defendant not guilty of <insert name[s] of all offense[s] with lawful performance as an element>.
“A custodial officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties.
“Special rules control the use of force.
“A custodial officer may use reasonable force in his or her duties to restrain a person, to overcome resistance, to prevent escape, or in self-defense.
“If a person knows, or reasonably should know, that a custodial officer is restraining him or her, that person must not use force or any weapon to resist an officer’s use of reasonable force.
“If a custodial officer uses unreasonable or excessive force while (restraining a person/ [or] overcoming a person's resistance/ [or] preventing a person from escaping/ [or] defending himself or herself from a person), that person may lawfully use reasonable force to defend himself or herself.
“A person uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer’s use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection.”
Defendant argues that “[s]even strong law enforcement officers, several of them towering well over six feet and weighing two to three hundred pounds, ” were “holding and kneeing a handcuffed drunk who is face down on the ground, ” and this “conjures up images of excessive force. Defendant asserts that the self-defense instruction given focused on what he did, but did not tell the jury to focus on the deputies’ conduct.
As the People point out, defendant ignores that the court did give an excessive force instruction. In fact, defendant requested the following special instruction as part of the self-defense instruction: “An officer may use reasonable force to overcome resistance. [¶] If an officer uses unreasonable or excessive force on a person, that person may lawfully use reasonable force to defend himself. [¶] A person uses reasonable force when he uses that degree of force that he or she actually believes is reasonabl[y] necessary to protect himself from the officer’s use of unreasonable or excessive force; and uses no more force than [a] reasonable person in the same situation would believe is necessary for his protection. [¶] The rule allowing resistance to excessive force applies during a lawful or unlawful arrest. [¶] If you find that an officer or officers engaged in excessive force to overcome [defendant’s] resistance, th[e]n [defendant] is entitled to an acquittal as to counts II and III. However, you may still find [defendant] guilty of the lesser-included offenses for these counts.”
The court gave defendant’s requested instruction, and therefore the invited error doctrine applies. “When a defense attorney makes a ‘conscious, deliberate tactical choice’ to forego a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was omitted in error. [Citations.] When defense counsel makes an equally conscious and deliberate tactical choice to request a particular instruction––such as the instruction defense counsel specifically requested here––there is no reason to apply a different rule.” (People v. Wader (1993) 5 Cal.4th 610, 657-658.)
Additionally, under the requested instruction, defendant would have been acquitted if the jurors found the officers used excessive force to overcome defendant’s resistance. Accordingly, there is no prejudicial instructional error based on failing to give CALCRIM No. 2671.
3. Court’s Failure to Instruct on Simple Battery as a Lesser-Included Offense of Felony Battery
Defendant’s third complaint regarding the instructions given is that the trial court failed to instruct sua sponte on simple battery as a lesser-included offense with respect to the two counts of felony battery against the custodial officers. He declares with almost no discussion that this failure requires reversal.
The court did instruct the jury on simple battery as charged in counts 4 through 7.
At trial, when discussing the instructions to be given, defense counsel stated that the only lesser-included offense he wanted for counts 2 and 3, the felony battery charges, was simple assault. The prosecutor mentioned that battery should be included. The court responded that it would provide a battery instruction as a lesser to counts 2 and 3 if counsel wanted such an instruction. Defense counsel did not respond. The next day, the court went over the instructions and stated that it was going to provide an instruction on simple assault as a lesser-included offense of the offenses charged in counts 2 and 3. Defense counsel never objected to the instructions given or requested an additional instruction.
In any event, even if the court should have sua sponte given an instruction on simple battery with respect to counts 2 and 3, any such error was harmless. The underlying purpose of requiring instructions on lesser-related offenses is to eliminate forcing the jury to choose between a verdict of guilt or innocence. (Schad v. Arizona (1991) 501 U.S. 624, 646; People v. Lipscomb (1993) 17 Cal.App.4th 564, 571.) Here, the jury was not forced into choosing between a verdict of guilt or innocence, as the jury could have acquitted defendant of the felony batteries against the custodial officers and convicted him instead of misdemeanor simple assault.
Furthermore, the jury, by rejecting the lesser-included offense of assault, clearly found the evidence supported the charges that defendant committed a battery against Schiavone and Bennett. Thus, the jurors could only find simple battery rather than felony battery on counts 2 and 3 if they found that defendant did not know or should not have reasonably known Schiavone and Bennett were custodial officers. As discussed above, the record overwhelmingly supported a finding that defendant should have reasonably known they were custodial officers and therefore, even presuming the court should have given a simple battery instruction with regard to counts 2 and 3, it is not reasonably probable that defendant would have obtained a more favorable outcome had such an instruction been given. (See People v. Breverman, supra, 19 Cal.4th at p. 178.)
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.
“(c) Each person described in this section as a custodial officer shall, within 90 days following the date of the initial assignment to the position, satisfactorily complete the training course specified in Section 832. In addition, each person designated as a custodial officer shall, within one year following the date of the initial assignment as a custodial officer, have satisfactorily met the minimum selection and training standards prescribed by the Board of Corrections pursuant to Section 6035. Persons designated as custodial officers, before the expiration of the 90-day and one-year periods described in this subdivision, who have not yet completed the required training, may perform the duties of a custodial officer only while under the direct supervision of a peace officer as described in Section 830.1, who has completed the training prescribed by the Commission on Peace Officer Standards and Training, or a custodial officer who has completed the training required in this section.
“(d) At any time 20 or more custodial officers are on duty, there shall be at least one peace officer, as described in Section 830.1, on duty at the same time to supervise the performance of the custodial officers.
“(e) This section shall not be construed to confer any authority upon any custodial officer except while on duty.
“(f) A custodial officer may use reasonable force in establishing and maintaining custody of persons delivered to him or her by a law enforcement officer; may make arrests for misdemeanors and felonies within the local detention facility pursuant to a duly issued warrant; may release without further criminal process persons arrested for intoxication; and may release misdemeanants on citation to appear in lieu of or after booking.”