People v. Brown

Filed 2/25/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

A141172

v.

WILBERT BROWN, (Contra Costa County

Super. Ct. No. 121946-8)

Defendant and Appellant.

I.

INTRODUCTION

In November 2011, Wilbert Brown was riding his bicycle on a sidewalk one

evening in Richmond when Officer Michael Ricchiuto ordered him to stop for wearing

earphones while riding, and for not having a light. Brown, who was 67 years old at the

time, attempted to flee, but Ricchiuto and a second officer, Officer James Moody, chased

him down and arrested him. After a physical altercation during the arrest, the officers

restrained Brown and found drugs in a baggie he had discarded during the chase.

Charges arising out of this incident resulted in felony convictions for possession and

transportation of cocaine and for using force or violence to resist an executive officer in

the performance of his duty in violation of Penal Code section 69 (section 69). Brown

appeals, seeking reversal of his conviction for violating section 69 on two grounds:

(1) the failure to instruct the jury sua sponte regarding simple assault as a lesser

necessarily included offense, and (2) the erroneous admission of expert testimony

regarding police standards for use of force. We agree with both contentions and shall

conditionally reverse, finding that these errors, considered individually and cumulatively,

1

require either a modification or reversal of Brown’s conviction for resisting an officer by

force or violence.1

II.

STATEMENT OF FACTS AND PROCEDURE

A. Brown’s Arrest on November 14, 2011: The Officers’ Version vs.

Brown’s Version

The initial series of events leading to Brown’s arrest was undisputed. Near dusk

on November 14, 2011, Officer Ricchiuto was on patrol in his cruiser in the Iron Triangle

area of Richmond, a neighborhood known for drug trafficking and gang activity, often

involving young African American men. He spotted Wilbert Brown, a 67-year-old

African American man, riding a bicycle on the sidewalk in violation of the Richmond

Municipal Code, while wearing headphones and without a light in violation of the

California Vehicle Code. Officer Ricchiuto yelled at Brown to stop, but Brown sped up

and tried to flee, with Officer Ricchiuto in pursuit. Another officer, Officer Moody, who

was backing up Ricchiuto in a second cruiser, joined in the chase and at one point

wedged his car in front of Brown’s path in an effort to cause a collision. Brown managed

to steer around Moody’s car, grazing it and breaking a side mirror as he passed. Both

officers eventually left their vehicles and pursued Brown on foot. The officers cornered

Brown in an abandoned parking lot, where they arrested him after a brief altercation. In

the course of that altercation, Brown sustained a fractured rib and knots on his head,

while Officer Ricchiuto sustained a “boxer’s fracture” to the knuckle of his right hand.

At the time of their encounter with Brown, both officers were several decades younger

1

Brown also seeks review of the denial of a pretrial motion for discovery of the

personnel records of the officers involved in the incident pursuant to Pitchess v. Superior

Court (1974) 11 Cal.3d 531 (Pitchess). Having reviewed the withheld personnel records,

we affirm the trial court’s denial of Brown’s Pitchess motion. On August 1, 2014, this

court filed an order indicating that we had reviewed the sealed record of the Pitchess

proceeding and found “that there are no discoverable documents under seal that should be

produced to counsel.” In his opening brief, appellant requests a second review be

conducted with the “benefit” of his factual summary and legal analysis. The disposition

we reach reaffirms our August 1, 2014 order.

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than Brown (Ricchiuto was in his “late 20s” and Moody was 38), and in excellent

physical condition. They were also physically much bigger than Brown (Brown was 5’

8”, 140 pounds, while the officers were 6’ 0’’, 175 and 200 pounds respectively).

What happened in the parking lot when the officers caught Brown was a matter of

some dispute.

According to the officers, at that point they had no idea how old Brown was. To

them, he was a man they had never seen before, who was wearing baggy clothes, and

who, by this stage of the chase, was suspected of felony drug trafficking. Officer Moody

caught up to Brown first, yelled at him repeatedly to stop, and then tackled him, throwing

him off of his bicycle, and taking him to the ground. Brown “aggressively” “flipp[ed]

back over” into a “sitting position”, and became combative, “swinging his hands” with a

“clenched fist.” To get control of Brown and protect himself, Officer Moody used his fist

to hit Brown in the torso area with a “compliance strike,” but the punch had no effect and

Brown continued to swing at him; at that point, Officer Ricchiuto came to Officer

Moody’s assistance, and, seeing Brown reach for something in his waistband, delivered

three “compliance strikes,” one with his knee to Brown’s torso, and two with his fists to

the side of Brown’s head. These blows caused Brown to stop swinging2 and shield his

head with his hands, a defensive move that finally brought him under control, since it

allowed the officers to secure his hands and place him in handcuffs. Brown’s account of

the officers’ actions was quite different. He testified that he fell off his bicycle in the

parking lot after hitting a curb. He claimed that, without any kind of warning, and while

he was face-down on the ground, not resisting and no longer fleeing, one of the officers

dived on his back with enormous force, “like Superman,” pinning him down. That

officer, angry and unprovoked, then proceeded to slug him in the head three times. In

2

Both officers were wearing bullet-proof vests. Officer Moody testified that

Brown never succeeded in hitting him. Officer Ricchiuto testified that Brown hit him

twice. Neither suffered injuries from what Officer Moody described as Brown’s

“flail[ing]” at them.

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Brown’s telling, all the second officer did was handcuff him after he had been pummeled

by the first officer. Brown denied swinging at either officer. He testified, “I wouldn’t

even try to—I couldn’t win anyway, but no, I didn’t.”

B. Expert Testimony

The prosecution presented the testimony of three experts to support its case, the

first two to support the drug charges and the third to support the charge of resisting an

executive officer with force or violence. Criminalist Richard Bowden testified as an

expert in the area of analyzing controlled substances. Bowden was asked to examine a

packet of 10 knot-tied plastic bags containing an off-white chunky substance that had

been contained in the baggie Brown discarded. Bowden tested one of the bags and

concluded it contained .219 grams of cocaine base. Bowden offered the opinion that the

other packets, which contained substantially similar amounts of what appeared to be the

same substance, were also cocaine. The total estimated net weight of the substance in all

10 bags was 1.799 grams.

Detective Miguel Castillo of the Richmond Police Department (RPD) testified as

an expert on the subject of possession of cocaine base for sale. Castillo opined that when

a person is carrying narcotics for sale rather than for personal use, he holds the drugs in

individual use packages in order to make speedy transactions, maximize profits, and

avoid carrying a scale. A “street-level dealer” also avoids having to use “pay/owe”

sheets by packaging narcotics in a single dose amount, which is approximately .2 grams.

When asked about a hypothetical suspect who was in possession of the amount and type

of substances that Ricchiuto found when chasing Brown, Castillo opined that the drugs

belonged to a street-level dealer who sells useable amounts of cocaine base.

Under cross examination, Castillo testified that a single dose of rock cocaine has

an effect on the user for approximately 30 to 40 minutes and that the typical user may

partake of this drug several times a day. In Castillo’s experience, however, most users

buy only one dose at a time, get high from it, and then go back to their suppliers for more,

instead of simply buying several doses at one time. Castillo conceded that in the 15 cases

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in which he had testified as an expert regarding possession of cocaine for sale, the

amount of drugs in question was never as small as 1.7 grams.

Another RPD officer, Sergeant Albert Walle, provided expert testimony on the

subject of police officer “defensive tactics.” The prosecutor began her examination of

Walle by asking about the legal authority of the police to use reasonable force. Walle

testified that Penal Code section 835 authorizes the police to “use reasonable force when

necessary when a public offense has been committed in order to effect an arrest, prevent

an escape or overcome resistance.” Walle also explained that the concept of “reasonable

force” is defined in a 1989 Supreme Court case called Graham v. Connor.3 When asked

for the “general gist” of what reasonable force means, Walle stated: “Whenever you’re

using force, try to look at the totality of the circumstances through the perspective of the

officer at the time who was using force, keeping in mind that the situation is fluid,

evolving, and there’s also various factors that come in that as well, too.”

Walle testified that when officers have to use reasonable force their primary

objective is to subdue suspects by overcoming their resistance and detaining them safely.

The main factor affecting the officer’s decision about what force to use will be the

suspect’s “resistance level” because the officer is going to be responding to what the

suspect is doing. To teach officers how to respond appropriately, RPD employs a “use of

force continuum,” which consists of a ladder of escalation of resistance on one side

matched against a ladder of escalation of force by the officer on the other side. Officers

are taught not to look at an altercation as a “fair fight,” but to employ a higher level of

force than he or she faces: “You don’t want to bring a baton to a knife fight, so you also

want to be at least one level higher than what you’re . . . encountering.”

Walle outlined other important considerations for an officer who faces resistance

from a suspect, which include the need to react and take control as quickly as possible to

avoid fatigue; the importance of gaining control of the suspect’s hands because of their

potential to injure the officer; and the need to be attuned to movements toward the waist

3

See Graham v. Connor (1989) 490 U.S. 386 (Graham).

5

area because it is common to keep a weapon there. Walle testified that an officer does

not have “control” of a suspect until he or she stops resisting. The “tools” officers carry,

Walle testified, include a gun, handcuffs, pepper spray, a taser, baton, and a flashlight. In

addition, the officers are taught to use their “personal weapons,” which include hands,

forearms, elbows, knees and feet. Different tools are appropriate for different levels of

force. Using body parts or a baton is considered “lower level force,” while a taser is an

“intermediate” level, and a firearm is the highest level of force.

The prosecutor asked Walle to address a hypothetical situation in which a suspect

was using a closed fist to swing at and attempt to punch an officer. Walle characterized

that hypothetical suspect as engaging in “assaultive” behavior. In that situation, officers

are trained to use either personal body weapons, a taser, baton or pepper spray. Officers

are also trained to provide assistance to an officer dealing with assaultive behavior

because it is usually easier to gain control when another officer assists, and gaining

control quickly is important for the safety of the officers as well as the suspect. Walle

testified that “[m]ost use-of-force incidences happen within a matter of seconds, and

they’re constantly evolving and they’re very dynamic, and an officer has to think on his

feet very fast, and oftentimes doesn’t have time—has to be very instinctive and a lot of it

is responsive to training.”

C. Jury Verdict and Sentence

The jury was instructed on two felony drug charges: possession for sale of cocaine

base (Health & Saf. Code, § 13351.5); and transporting cocaine base (Health & Saf.

Code, § 11352). It also received instruction regarding possession of cocaine base (Health

& Saf. Code, § 11350), as a lesser offense of the possession for sale charge. The jury

also was instructed on the charge that Brown violated section 69, the offense which is the

subject of this appeal. Section 69, subdivision (a) states: “Every person who attempts,

by means of any threat or violence, to deter or prevent an executive officer from

performing any duty imposed upon the officer by law, or who knowingly resists, by the

use of force or violence, the officer, in the performance of his or her duty, is punishable

by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to

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subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both

such fine and imprisonment.”

Section 69 can be violated in two separate ways. “ ‘The first is attempting by

threats or violence to deter or prevent an officer from performing a duty imposed by law;

the second is resisting by force or violence an officer in the performance of his or her

duty.’ ” (People v. Smith (2013) 57 Cal.4th 232, 240 (Smith).) In this case, the jury was

instructed about the second type of section 69 violation which requires the prosecution to

prove the defendant knowingly resisted the officer “ ‘by the use of force or violence,’ ”

and “that the officer was acting lawfully at the time of the offense.” (Id. at p. 241.) At

the request of both the prosecution and the defense, the jury was provided with the option

of convicting Brown of misdemeanor resisting an officer during the lawful performance

of his duties in violation of Penal Code section 148, subdivision (a) (section 148(a)), as a

lesser included offense of the section 69 felony charge. The theory of Brown’s defense to

the section 69 charge was that the officers did not act lawfully when they arrested him

because they used unreasonable and excessive force. The instructional guidance the jury

received on this issue was CALCRIM No. 2670, which provides that “A peace officer

may use reasonable force to arrest or detain someone, to prevent escape, to overcome

resistance, or in self-defense.”4

4

Neither party requested a special jury instruction giving the jury further guidance

as to what constitutes “reasonable force” under Graham. The CALCRIM No. 2670

instruction the jury received, however, did elaborate in another respect, providing

guidance as to the lawfulness of an arrestee’s conduct when confronted with

unreasonable or excessive force by an officer. “If a peace officer uses unreasonable or

excessive force while . . . arresting . . . a person, that person may lawfully use reasonable

force to defend himself or herself,” which is in turn defined as “that degree of force he or

she actually believes is reasonably necessary to protect himself or herself from the

officer’s use of unreasonable or excessive force” and “no more force than a reasonable

person in the same situation would believe is necessary for his or her protection.”

(CALCRIM No. 2670.) But the criteria by which to evaluate objective reasonableness—

whether from a reasonable officer’s perspective or from the arrestee’s—were, in this

case, left to the jury.

7

On October 4, 2013, the jury returned its verdicts, finding Brown not guilty of

possession of cocaine base for sale, but guilty of the lesser included offense of possession

of cocaine base; guilty of transportation of cocaine base; and guilty of using force or

violence to resist an officer in the lawful performance of his duties in violation of section

69. Brown was sentenced in January 2014. The trial court granted a defense motion to

dismiss the transportation conviction based on intervening legislation limiting that

offense to transportation for sale. (See Health & Saf. Code, § 11352, subd. (c), added by

Stats. 2013, ch. 504, § 1 (AB 721).) The court denied a defense motion to reduce the

section 69 conviction to a misdemeanor, however, because Brown’s decision to flee

caused both property damage and personal injury (Brown’s bike “wiped out” the mirror

on the officer’s patrol car, and the officer injured his hand because of the contact with

Brown). After considering the relevant sentencing factors, the court placed Brown on

three years felony probation with a suspended 120-day jail term as a condition of

probation.

III.

DISCUSSION

A. The Instructional Error

1. Issue Presented

Framing the case as a choice between two starkly different scenarios, one

recounted by the officers, or the other recounted by Brown, the Attorney General

contends the jury chose the first, resolving a simple credibility contest in favor of the

officers. That may be so, Brown responds, but by failing to instruct the jury on the lesser

included offense of simple assault, the court never gave the jury the option of finding that

both versions of the facts were partly true. He points out, for example, that even if the

jury believed he swung at the officers, it reasonably might have found that his punches

were feckless, yet drew a severe and wholly unnecessary beating in response. Without

commenting on which version of events here was the more persuasive, we conclude that

Brown’s assignment of instructional error has merit, that the jury should have been given

the option of finding him guilty of simple assault, and that he was prejudiced by the error.

8

As noted above, a violation of section 69 can occur in two circumstances. Under

that section, a defendant commits a violation by attempting to deter an officer’s lawful

duty by violence or threat of violence. Alternatively, section 69 is violated where a

defendant knowingly resists an officer’s execution of lawful duty by actually using force

or violence. (Smith, supra, 57 Cal.4th at p. 240.) Because the second ground for section

69 liability was the sole theory the prosecutor pursued at trial, the jurors were instructed

that they could convict for violation of section 69 only if they found actual use of force or

violence. At the request of both Brown and the prosecutor, the instructions gave the jury

the option of finding Brown guilty of misdemeanor resisting an officer during the lawful

performance of his duties as a lesser included offense of the section 69 charge. Under

this lesser charge, the jury could have convicted Brown had it found that Brown resisted

the officers’ lawful performance of their duties, even if he did not use force or violence to

effectuate that resistance. (See § 148(a).) Brown contends on appeal that the jury should

have been given an additional option—convicting him of misdemeanor simple assault as

a lesser included offense to a section 69 violation.

An assault is “an unlawful attempt, coupled with a present ability, to commit a

violent injury on the person of another.” (Pen. Code, § 240 (section 240).) An “assault

does not require a specific intent to cause injury or a subjective awareness of the risk that

an injury might occur. Rather, assault only requires an intentional act and actual

knowledge of those facts sufficient to establish that the act by its nature will probably and

directly result in the application of physical force against another.” (People v. Williams

(2001) 26 Cal.4th 779, 790.) Brown asserts that a conviction for assault could have been

supported by trial evidence that he used force to resist the officers under circumstances

where the jury found the officers responded with excessive force, a factual scenario

falling somewhere between the officers’ version of events in the parking lot and that of

Brown.

Brown concedes that he did not request an assault instruction, but he contends that

the trial court had a sua sponte duty to instruct on assault as a lesser included offense of

the section 69 charge. “ ‘California law has long provided that even absent a request, and

9

over any party’s objection, a trial court must instruct a criminal jury on any lesser offense

“necessarily included” in the charged offense, if there is substantial evidence that only the

lesser crime was committed. This venerable instructional rule ensures that the jury may

consider all supportable crimes necessarily included within the charge itself, thus

encouraging the most accurate verdict permitted by the pleadings and the evidence.’

[Citation.] ‘[T]he rule prevents either party, whether by design or inadvertence, from

forcing an all-or-nothing choice between conviction of the stated offense on the one hand,

or complete acquittal on the other. Hence, the rule encourages a verdict, within the

charge chosen by the prosecution, that is neither “harsher [n]or more lenient than the

evidence merits.” [Citations.]’ [Citation.] Thus, ‘a trial court errs if it fails to instruct,

sua sponte, on all theories of a lesser included offense which find substantial support in

the evidence. On the other hand, the court is not obliged to instruct on theories that have

no such evidentiary support.’ ” (Smith, supra, 57 Cal.4th at pp. 239–240.)

“ ‘ “We apply the independent or de novo standard of review to the failure by the

trial court to instruct on an assertedly lesser included offense. [Citation.]” ’ [Citation.]”

(People v. Campbell (2015) 233 Cal.App.4th 148, 158.)

2. Analysis

“Under California law, a lesser offense is necessarily included in a greater offense

if either the statutory elements of the greater offense, or the facts actually alleged in the

accusatory pleading, include all the elements of the lesser offense, such that the greater

cannot be committed without also committing the lesser.” (People v. Birks (1998) 19

Cal.4th 108, 117–118 (Birks).)

The question whether assault is a lesser necessarily included offense of section 69

is somewhat complicated by the fact that section 69 can be violated in two separate ways,

as we explained earlier. A person can commit this felony either by (1) attempting by

threats or violence to deter or prevent an officer from performing a duty imposed by law,

or (2) by knowingly resisting through the actual use of force or violence against an

officer in the performance of his or her duty. (Smith, supra, 57 Cal.4th at p. 240.) A

person can violate section 69 in the first way without necessarily attempting to apply

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physical force. (See In re Manuel G. (1997) 16 Cal.4th 805, 817 [defendant can commit

first type of offense prohibited by section 69 by threatening an officer in an attempt to

deter officer from future performance of a duty].) Under this formulation, a person can

violate section 69 without also violating section 240, which defines an assault as “an

unlawful attempt, coupled with a present ability, to commit a violent injury on the person

of another.” Therefore, as Brown concedes, section 240 is not a lesser included offense

of section 69 under the statutory elements test.

Under the accusatory pleading test, however, we consider whether the facts

alleged in the accusatory pleading include all the statutory elements of an assault. (Birks,

supra, 19 Cal.4th at pp. 117–118.) Here, although the prosecutor’s trial theory was that

Brown committed the second type of section 69 violation, the first amended information

was not so limited. It alleged that Brown violated section 69 not just by attempting to

deter or prevent the officer from performing his duties (which can be accomplished

without force), but also by knowingly resisting the officers with force and violence.

Because the accusatory pleading used the conjunctive to charge Brown with both ways of

violating section 69, and it is not possible to violate the statute in the second way without

committing an assault, we conclude that assault was necessarily a lesser included offense

of section 69 under the accusatory pleading test. (See Smith, supra, 57 Cal.4th at

pp. 242–243 [§ 148(a) was necessarily a lesser offense of § 69 when accusatory pleading

charged the defendant with both ways of violating § 69].)

The Attorney General concedes “[f]or purposes of this appeal . . . that section 240

was a necessarily included offense of section 69 as alleged in the amended information.”

But she nonetheless contends an assault instruction was not required in this case because

there was no evidence that Brown’s offense was less than the crime charged.

“[I]nstructions on lesser included offenses ‘are required whenever evidence that the

defendant is guilty only of the lesser offense is “substantial enough to merit

consideration” by the jury. [Citations.] “Substantial evidence” in this context is

“ ‘evidence from which a jury composed of reasonable [persons] could . . . conclude[]’ ”

that the lesser offense, but not the greater, was committed. [Citations.]’ [Citation.]

11

Instructions on lesser included offenses should be given ‘when the evidence raises a

question as to whether all of the elements of the charged offense were present [citation],

but not when there is no evidence that the offense was less than that charged.’

[Citations.]” (People v. Campbell, supra, 233 Cal.App.4th at p. 162.)

Specifically, the Attorney General contends there was no evidence from which the

jury could have concluded that Brown committed an assault without also violating

section 69. She reasons that the jury was faced with a choice of either (1) crediting the

prosecution evidence, which would establish that Brown forcibly resisted the officers and

that the officers used reasonable force, or (2) crediting Brown’s story, which would have

established that the officers used excessive force and Brown was “completely

unaggressive and defenseless.” This reading of the record misconstrues the function of

the jury in the truth seeking process. “ ‘Our courts are not gambling halls but forums for

the discovery of truth.’ [Citation.] Truth may lie neither with the defendant’s

protestations of innocence nor with the prosecution’s assertion that the defendant is guilty

of the offense charged, but at a point between these two extremes: the evidence may

show that the defendant is guilty of some intermediate offense included within, but lesser

than, the crime charged.” (People v. Barton (1995) 12 Cal.4th 186, 196.) Thus, the jury

was not required to choose and fully credit only one of the two versions of the November

2011 incident that were presented to it. For example, the jury could also have concluded

that Brown used force or violence to resist arrest but that the officers nonetheless

responded with unreasonable force. Under that scenario, Brown could have been found

not guilty of the section 69 violation, but still guilty of the lesser crime of assault.

Alternatively, the Attorney General argues that the trial evidence established that

the officers used reasonable force as a matter of law. Reasoning that Sergeant Walle’s

testimony established that the officers were legally entitled to use a level of force that

was more than one level above the level of force used by the suspect, respondent

contends that there is no evidence “in the record that would support a finding that the

officers’ conduct was anything more than one level above that employed by [Brown] or

that it continued longer than necessary to gain control of [Brown].” The premise of this

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argument—that Sergeant Walle’s testimony was properly admitted—is incorrect for

reasons we explain below, but even had the testimony been narrowly enough framed and

appropriate for admission, the argument fundamentally misconceives the proper role of

expert testimony in a case of this nature. Such testimony can never be used to define, as

a matter of law, what constitutes objectively reasonable force or to decide whether it was

used in a given case.

As we have posited, the trial evidence would substantially support a jury finding

that, although Brown attempted to use force to resist arrest, the officers overreacted with

excessive force and, therefore, were not acting within the scope of their duties. “[A]

resisting defendant commits a public offense; but if the arrest is ultimately determined

factually to be unlawful, the defendant can be validly convicted only of simple assault or

battery.” (People v. Curtis (1969) 70 Cal.2d 347, 355–356.) Thus, we conclude that the

trial court erred by failing to instruct the jury regarding assault as a lesser necessarily

included offense of the section 69 charge. “ ‘[T]he failure to instruct sua sponte on a

lesser included offense in a noncapital case is, at most, an error of California law alone,

and is thus subject only to state standards of reversibility.’ [Citation.] Under the state

standard, ‘such misdirection of the jury is not subject to reversal unless an examination of

the entire record establishes a reasonable probability that the error affected the outcome.’

[Citations.] ‘The Supreme Court has emphasized “that a ‘probability’ in this context does

not mean more likely than not, but merely a reasonable chance, more than an abstract

possibility. [Citations.]” [Citation.]’ ” (People v. Campbell, supra, 233 Cal.App.4th at

p. 165.) Under this test, we find a reasonable probability the error affected the outcome

of this case. The use of excessive force was a primary defense theory at trial and there

was substantial evidence to support it. But the instructional error precluded the jury

from finding that the officers used excessive force, while convicting Brown of assault for

swinging at the officers in a manner that could have injured them, whether he intended to

cause injury or not. A “jury without an option to convict a defendant of a lesser included

offense might be tempted to convict the defendant of an offense greater than that

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established by the evidence instead of rendering an acquittal.” (People v. Eid (2014) 59

Cal.4th 650, 658.)

Furthermore, this jury showed a readiness to scrutinize the evidence, draw its own

independent conclusions of Brown’s level of culpability, and convict on lesser charges

than the prosecutor requested. The jury convicted Brown of a lesser included offense on

the drug charge, for example, which is an indication that it had doubts about the

prosecution’s case which might also have affected its resolution of the section 69 charge.

(See People v. Mullendore (2014) 230 Cal.App.4th 848, 857 [doubts leading jury to

convict defendant of lesser offense of one charge could have led to a similar result on

another charge for which it was not given that option].) Brown contends that the jury

convicted him of simple possession rather than possession for sale because it had doubts

about the credibility of the officers’ story that Brown threw the bag of cocaine rocks

under the parked car. Alternatively, that verdict may indicate that the jury drew different

conclusions from expert evidence about possession of cocaine for sale than the prosecutor

had intended. In any event, the jury could have had similar doubts about the section 69

charge. As discussed above, the defense argued that, even though Brown may have used

force to resist arrest, the officers overreacted and administered a beating that was

unreasonable and excessive. The instructional error precluded the jury from deciding

whether to credit the substantial evidence supporting this theory.

The Attorney General’s only harmless error argument is that the instructional error

did not affect the outcome because “in convicting [Brown] of violating section 69 the

jury showed it rejected [Brown’s] claim of excessive force and found that the level of

force used by the officers was at all times reasonable.” But in assessing prejudice, “it

does not matter that the jury chose to convict the defendant of the greater offense over

acquittal or that the defendant was convicted of the greater offense on sufficient

evidence.” (People v. Racy (2007) 148 Cal.App.4th 1327, 1335–1336.) To hold

otherwise would undermine the very purpose of the sua sponte rule. (People v.

Breverman (1998) 19 Cal.4th 142, 178, fn. 25.) It does seem abundantly clear, however,

as the Attorney General points out, that the jury found that Brown swung his fists at one

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or more of the officers during the course of the arrest. Whether these blows (or attempted

blows) were effectual or not, we find substantial evidence to support an assault

conviction. “When a greater offense must be reversed, but a lesser included offense

could be affirmed, we give the prosecutor the option of retrying the greater offense, or

accepting a reduction to the lesser offense.” (People v. Kelly (1992) 1 Cal.4th 495, 528;

see People v. Hayes (2006) 142 Cal.App.4th 175, 184.) On remand we will provide the

prosecution with the option of retrying the section 69 charge along with a charge of

simple assault, subject to the guidance provided below in Part III.B.

B. Admission of Expert Testimony on Police Use of Force

1. Principles Governing Admission of Expert Testimony Generally

We review the trial court’s ruling on the admissibility of expert testimony for

abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012)

55 Cal.4th 747, 773 (Sargon).) A ruling that constitutes an abuse of discretion has been

described as one that is “ ‘so irrational or arbitrary that no reasonable person could agree

with it.’ ” (Ibid.) But the trial court’s discretion is not unlimited. “ ‘The scope of

discretion always resides in the particular law being applied, i.e., in the “legal principles

governing the subject of [the] action . . . .” Action that transgresses the confines of the

applicable principles of law is outside the scope of discretion and we call such action an

“abuse” of discretion. [Citation.] . . . [¶] The legal principles that govern the subject of

discretionary action vary greatly with context. [Citation.] They are derived from the

common law or statutes under which discretion is conferred.’ [Citation.] To determine if

a court abused its discretion, we must thus consider ‘the legal principles and policies that

should have guided the court’s actions.’ ” (Sargon, supra, 55 Cal.4th at p. 773.)

The principles of law governing admission of expert testimony are well-settled.

“ ‘California law permits a person with “special knowledge, skill, experience, training, or

education” in a particular field to qualify as an expert witness . . . and to give testimony

in the form of an opinion.” (People v. Vang (2011) 52 Cal.4th 1038, 1044; Evid. Code,

§§ 720, 801.) “ ‘Generally, the opinion of an expert is admissible when it is “[r]elated to

a subject that is sufficiently beyond common experience that the opinion of an expert

15

would assist the trier of fact . . . .” ’ ” (Allgoewer v. City of Tracy (2012) 207

Cal.App.4th 755, 761 (Allgoewer); see Evid. Code, § 801, subd. (a) [expert testimony

must be “[r]elated to a subject that is sufficiently beyond common experience that the

opinion of an expert would assist the trier of fact”].) However, “ ‘ “[w]here the jury is

just as competent as the expert to consider and weigh the evidence and draw the

necessary conclusions, then the need for expert testimony evaporates.” ’ ” (Allgoewer,

supra,. at p. 762.) Expert testimony will be excluded “ ‘ “when it would add nothing at

all to the jury’s common fund of information, i.e., when ‘the subject of inquiry is one of

such common knowledge that men [and women] of ordinary education could reach a

conclusion as intelligently as the witness.’ ” ’ ” (People v. Jones (2012) 54 Cal.4th 1,

60.)

Some topics are categorically off-limits to expert testimony. (See Evid. Code,

§ 801, subd. (b) [caveat to admissibility where “expert is precluded by law from using

such matter as a basis for his opinion”], § 802 [expert may state basis for opinion “unless

he is precluded by law from using such reasons or matter as a basis for his opinion”].)

For example, juries are competent to decide such things as witness credibility (People v.

Wells (2004) 118 Cal.App.4th 179, 189), a defendant’s guilt or innocence (People v.

Torres (1995) 33 Cal.App.4th 37, 46), or whether a crime has been committed (id. at p

47), without expert assistance in all circumstances. Similarly, topics such as the

definition of a crime (id. at pp. 45–46), the meaning of a statute (id. at p. 46), or other

matters of law even if disguised as opinions about ultimate facts (Benavidez v. San Jose

Police Dept. (1999) 71 Cal.App.4th 853, 865), always lie beyond the proper role of an

expert.

2. Civil Cases Addressing Expert Testimony on Excessive Force

Issues

The use of excessive force by law enforcement officers is analyzed under the

Fourth Amendment’s objective reasonableness requirement for a seizure of the person

(Graham, supra, 490 U.S. at pp. 388, 394–395; Brown v. Ransweiler (2009) 171

Cal.App.4th 516, 527 (Brown)), and usually arises in one of two contexts: (1)

16

defensively, as here, when an accused seeks to defend against a charge of resisting arrest

or similar offense by contending the arrest was unlawful due to the officer’s use of

excessive force, and (2) offensively, when a person who claims to have been the victim

of excessive force by law enforcement sues for damages under 42 U.S. C. section 1983

(section 1983), or similar state law remedy. The specific question of admissibility of

expert testimony on use of force in the first of these situations has not been resolved in

California. Rather, the few cases shedding any light on this question, in California and

elsewhere, arise in the civil context, usually under section 1983. Because the rules of

evidence governing expert testimony in California, in other states, and in the federal

courts are broadly similar, at least insofar as is material here, it is worthwhile to preface

our analysis of this issue of first impression with a review of the pertinent civil precedent

decided by courts nationwide.

Summing up the state of the law across the country, one commentator recently

observed that, although some courts allow excessive force expert testimony, “a larger

number of courts have held that it is not required or not admissible.” (Annot.,

Requirement for, and Admissibility of, Expert Testimony to Determine Whether Use of

Particular Amount of Force in Course of Making Arrest Was Unreasonable (2015) 95

A.L.R. 6th 641, 649; see id. at §§ 3–10 [collecting cases].) Illustrative of the majority

view, this commentator noted, is Allgoewer, supra, 207 Cal.App.4th 755, the leading

California case to address expert testimony on issues of excessive force. Though not

directly applicable here, Allgoewer serves as a helpful entry point to our analysis.

In Allgoewer, two police officers visited the home of plaintiff Allgoewer to

investigate a complaint from Allgoewer’s former wife that he was keeping the couple’s

son in violation of a child custody order. (Allgoewer, supra, 207 Cal.App.4th at p. 758.)

Allgoewer became agitated while talking to the officers in his yard, and refused to drop a

hand rake that he had been using. (Ibid.) The officers forced him to the ground, tased

him twice, and wrenched his arms behind his back while arresting him, breaking his wrist

and tearing muscles in his shoulder and bicep. (Id. at pp. 758–759.) In Allgoewer’s civil

suit against the officers for excessive force, the defense argued that he was required to

17

present expert testimony, drawing an analogy to medical malpractice cases. (Id. at

pp. 759, 762.) The trial court found the argument persuasive and granted a non-suit

motion. (Id. at p. 760.) Reversing, the appellate court began with a brief discussion of

Graham, supra, 490 U.S. 386, the leading United States Supreme Court excessive force

case involving non-deadly force. “Under Graham, . . . the question in a case such as this

is whether the amount of force the officers used in making the arrest was objectively

unreasonable given the circumstances they faced.”5 (Allgoewer, supra, 207 Cal.App.4th

at p. 763.) Finding no California precedent directly addressing “[w]hether expert

testimony is necessary to establish that a particular amount of force was objectively

unreasonable” (ibid.), the court canvassed pertinent out-of-state authority, focusing on

three cases, Kopf v. Skyrm (4th Cir. 1993) 993 F.2d 374 (Kopf), Thompson v. City of

Chicago (7th Cir. 2006) 472 F.3d 444 (Thompson), and Robinson v. City of West Allis

(Wis. 2000) 619 N.W.2d 692 (Robinson) (Allgoewer, supra, at pp. 763–764). From these

cases, the court distilled the following: “[E]xpert testimony can be admissible on the

issue of reasonable force” [Kopf], but is “not always admissible” [Thompson], and is

5

In assessing reasonableness, the Graham test calls for consideration of at least

three factors (which have come to be called the “Graham factors” in subsequent case law

and academic commentary): (1) the severity of the offense for which the suspect was

arrested, (2) the immediacy of the threat that the suspect posed to the officer or officers,

and (3) whether the suspect was fleeing or actively resisting. (Graham, supra, 490 U.S.

at p. 396.) “The most important of these is whether the suspect posed an immediate

threat to the officers or others, as measured objectively under the circumstances.”

(Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 712 (Mendoza).) Other

factors may be significant in a given case (Smith v. City of Hemet (9th Cir. 2005) 394

F.3d 689, 701), since the “proper application [of the Fourth Amendment’s reasonableness

test] requires careful attention to the facts and circumstances of each particular case . . . .”

(Graham, supra, 490 U.S. at p. 396.) Overall, however, the Court in Graham

emphasized that the test of “ ‘reasonableness’ of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight,” for “[t]he calculus of reasonableness must embody allowance for the

fact that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving . . . .” (Graham, supra, 490

U.S. at pp. 396–397.)

18

certainly not “required in an excessive force case” [Robinson]. (Allgoewer, supra, 207

Cal.App.4th at p. 764, italics in original.)

Notably, the precise legal question addressed in Allgoewer—whether expert

testimony is required from the plaintiff in a civil excessive force case—turns on a

standard that differs significantly from the standard governing whether such testimony is

admissible. For expert testimony to be admissible, it is not necessary that the subject of

the testimony lie wholly beyond the understanding of the average juror, but merely that,

even if the average juror has some knowledge of the topic, the expert might improve

upon or refine the jury’s common fund of information.6 In cases where expert testimony

is required, by contrast, the witness must have a degree of specialized knowledge that is

peculiarly within the province of experts.7 Of the three out-of-state cases Allgoewer

mentions, only Robinson addressed the question of whether expert testimony is required.

Finding persuasive the Wisconsin Supreme Court’s observation in Robinson that “ ‘[w]e

cannot at once emphasize the jury’s responsibility for applying the standard of

reasonableness and also claim that the issue is beyond the jury’s comprehension,’ ”

Allgoewer rejected the argument that expert testimony is required in an excessive force

case. “ ‘Requiring an expert as a prerequisite to a finding of use of excessive force,’ ” the

court reasoned, “ ‘would essentially remove from the jury the task of applying standards

of reasonableness and replace it with the task of evaluating the testimony of the parties’

experts.’ ” (Allgoewer, supra, 207 Cal.App.4th at p. 765.)

6

People v. Dejourney (2011) 192 Cal.App.4th 1091, 1110 (“Because admissibility

of expert opinion is a question of degree, and a jury need not be wholly ignorant of the

subject matter under the statutory rule, exclusion is only necessary where the opinion

would add nothing at all to the jury’s common fund of information.”).

7

Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702 (“If

the matter in issue is one within the knowledge of experts only and not within the

common knowledge of laymen, it is necessary for the plaintiff to introduce expert opinion

evidence in order to establish a prima facie case.”), italics in original; see Allgoewer,

supra, 207 Cal.App.4th at pages 761–762.

19

Allgoewer and Robinson both involved force that was primarily physical in nature

without the use of weapons or special law enforcement tools. The officers in Allgoewer

threw the arrestee to the ground and wrenched his arms behind his back (Allgoewer,

supra, 207 Cal.App.4th at pp. 758–759), and the officers in Robinson punched the

arrestee and slammed his face and body to the ground (Robinson, supra, 619 N.W.2d at

p. 696). Having rejected the notion that there is any per se rule requiring expert

testimony, the courts in both cases went further and determined there was no case-

specific “need” for expert testimony on the facts presented. As the Wisconsin Supreme

Court put it in Robinson, “there is no indication that the reasonableness of the officers’

actions involves matters so complex as to necessitate an expert. One need not be an

expert to determine whether a reasonable use of force in effectuating an arrest includes

smashing an arrestee’s face to the ground or landing a punch to the side of his head. . . .

The difficulty a jury will have with this case lies not in applying the reasonableness

standard to the facts as it finds them but in untangling the disputed facts presented by the

parties.” (Robinson, supra, 619 N.W.2d at pp. 700–701.) This secondary inquiry into

whether excessive force expertise was “needed” on the facts presented is roughly

analogous to whether proffered expert testimony will add anything to the knowledge of

the average juror, but because the root question in Allgoewer and Robinson—whether

expert testimony should be mandatory versus whether it should be admissible—differs

from the one presented here, Thompson and Kopf, the other two cases discussed in

Allgoewer, are more directly relevant to this case. Both Thompson and Kopf address

admissibility.

In Thompson, two officers saw what they suspected was a drug buy take place

between the driver of a parked black Mustang and a man who approached him. They

tailed the Mustang for a few blocks and then tried to pull it over for a traffic stop. The

Mustang at first pulled over, but then suddenly sped up and tried to get away, leading the

officers and several others who joined them on a high-speed chase that ended with the

Mustang crashing. Eventually, seven officers arrived at the scene of the crash, where the

driver of the car, James Thompson, 6’ 2”, 330 pounds, got out of the car and began

20

aggressively resisting their efforts to arrest him, swinging at them with his fists.

Thompson was tackled to the ground, and while on the ground face down, one officer,

Officer Hespe, sat on his back and placed him in a choke-hold, while the other officers

handcuffed him. The chokehold collapsed Thompson’s air passages, and he suffocated to

death. (Thompson, supra, 472 F.3d at pp. 447–448.) In the ensuing civil suit under

section 1983 against the officers, only Officer Hespe remained as an individual defendant

when the case went to trial, and the defense moved in limine prior to trial to exclude the

testimony of two experts proffered by the plaintiffs. According to the plaintiffs’ proffer,

the experts would have opined that Officer Hespe did not adhere to his training and used

a chokehold in violation of his department’s use-of-force policy. (Id. at pp. 449–450.)

The trial court granted the motion in limine, and excluded the testimony.

Affirming that ruling on appeal, the Seventh Circuit Court of Appeals noted that, under

Graham, “What constitutes ‘reasonableness’ with regard to an officer’s actions in

apprehending a suspect under the Fourth Amendment is ‘ “not capable of precise

definition or mechanical application” but “requires careful attention to the facts and

circumstances of each particular case . . . .” ’ ” (Thompson, supra, 472 F.3d at p. 454

(quoting Graham, supra, 490 U.S. at p. 396).) The court then looked to Whren v. United

States (1996) 517 U.S. 806, 815–816, where the United States Supreme Court rejected

the use of police manuals and standard procedures to evaluate what a “reasonable officer”

would do under the Fourth Amendment in the context of a traffic stop. Summarizing

Whren, Thompson observed that “police rules, practices and regulations vary from place

to place and from time to time,” and as a result, “are an unreliable gauge by which to

measure the objectivity and/or reasonableness of police conduct” under the Fourth

Amendment. (Thompson, supra, at p. 455.) Accordingly, Thompson concluded,

“Introducing two experts to testify that Officer Hespe used excessive force would have

induced the jurors to substitute their own independent conclusions for that of the

experts.” (Id. at p. 458.)

Kopf was another case involving the use of various forms of physical force, which

included the use of a trained police dog. In that case, a man and a woman, Anthony

21

Casella and Tammy Obloy, were suspects in the robbery of a pizza parlor. A team of

police officers chased them, at first by car, and then, eventually, on foot, catching up to

them in an area behind a garage, where the suspects tried to hide in a narrow passageway

between two buildings. The officers released a police dog into the passageway, where it

mauled both Casella and Obloy, despite cries from Obloy not to let the dog attack her

because she was pregnant. The officers eventually dragged the suspects out of the

passageway, with the dog continuing to bite at Casella. They testified that, once Cassella

was freed from the passageway, he lunged at them. In response, an officer struck Casella

multiple times in the head with a flashlight until it broke, and then with a slapjack.

Casella suffered multiple lacerations from the dog bites and permanent brain injury from

the blows to his head. (Kopf, supra, 993 F.2d at pp. 375–376.) At the trial of a

subsequent section 1983 case brought by Cassella’s personal representative (he had since

died in an unrelated incident), the officers testified that in making the arrests they simply

followed their training. In rebuttal, the plaintiffs sought to offer the expert testimony of a

use-of-force expert who proposed to testify that the officers, in fact, violated

departmental use-of-force policy and did not follow their training. (Id. at pp. 376–377.)

The trial court excluded the plaintiff’s expert, and on appeal a panel of the Fourth

Circuit Court of Appeals reversed. (Kopf, supra, 993 F.2d at p. 375.) The Court of

Appeals faulted the trial court for applying what appeared to be “a blanket rule that

expert testimony is generally inappropriate in excessive force cases . . . .” (Id. at p. 378.)

“The facts of every case will determine whether expert testimony w[ill] assist the jury.

Where force is reduced to its most primitive form—the bare hands—expert testimony

might not be helpful. Add handcuffs, a gun, a slapjack, mace, or some other tool, and the

jury may start to ask itself: what is mace? what is an officer’s training on using a gun?

how much damage can a slapjack do? Answering these questions may often be assisted

by expert testimony. [¶] A dog is a more specialized tool than a gun or slapjack. How to

train a poodle to sit or roll over is not everyday knowledge and could be explained by an

expert in a case where it was relevant. How to train and use a police dog are even more

obscure skills.” (Id. at p. 379.) Looking with close scrutiny at each type of force used,

22

the court found it was an abuse of discretion not to allow expert testimony concerning the

officers’ training and use of police dogs and slapjacks because these tools involved

enough special knowledge to warrant expert explanation. (Ibid.)

Hygh v. Jacobs (2d Cir. 1992) 961 F.2d 359 (Hygh), another civil excessive force

case involving physical blows to a suspect, is relevant here as well. There, in the course

of an arrest for disorderly conduct, Officer Jacobs slugged William Hygh in the face,

fracturing three cheek-bones. Jacobs claimed he hit Hygh with his fist in self defense.

(Id. at p. 361.) At trial in a section 1983 case seeking damages for excessive use of force,

Hygh presented a medical expert who opined, based on the extent of the injuries, that

Jacobs struck Hygh with “a blunt instrument of some sort.” (Ibid.) Since Jacobs

admitted he was carrying a flashlight that night, Hygh also presented a law enforcement

expert who testified that if Jacobs used the flashlight to strike Hygh rather than a fist, the

extent of force used was objectively unreasonable because the use of such a blunt

instrument met the legal definition of “deadly physical force.” (Id. at pp. 361–362.) On

appeal from a jury verdict in favor of plaintiff Hygh, the Second Circuit Court of Appeals

held that it was error to permit the expert to address legal matters, even though he did not

directly tell the jury how it should decide the case. “Even if a jury were not misled into

adopting outright a legal conclusion proffered by an expert witness,” the court held, “the

testimony would remain objectionable by communicating a legal standard—explicit or

implicit—to the jury. [Citations.] Whereas an expert may be uniquely qualified by

experience to assist the trier of fact, he is not qualified to compete with the judge in the

function of instructing the jury.” (Id. at p. 364). In the end, however, the appellate court

affirmed. After observing that the trial court had instructed the jury on the same matters

Hygh’s expert addressed, and that the difference between the expert’s version of law and

the trial court’s was “not substantial” (id. at p. 364), the appellate court found the law

enforcement expert’s testimony was erroneously admitted, but was not prejudicial,

although it did remark that the “question is close” (id. at pp. 364–365).

While some of these cases are more directly applicable than others, each of them

is to some degree instructive. Broadly speaking, Allgoewer, Robinson, Thompson and

23

Kopf all view the utility of expert testimony in civil excessive force cases through a

common frame of reference. Within that frame, the correct analysis is case-by-case and

very much dependent on the particular facts presented, but in general, where only bodily

force is used, the less likely it will be that an excessive force expert will add something to

the common store of knowledge that every jury brings to its task. Since the ultimate

issue for a jury to decide under Graham is whether the challenged conduct is objectively

reasonable, the training of particular officers—which focuses subjectively on how they

were predisposed to handle the situation they faced—is, at best, only marginally relevant.

What counts is whether a reasonable officer, faced with the same set of circumstances,

would have chosen the same course of action. Hygh adds the refinement that, even where

an expert does not address the ultimate issue for decision by a jury, legal guidance on

what constitutes objectively reasonable conduct must come from the trial judge, not from

the expert.

3. Analysis

a. The Threshold Issue of Form

The Attorney General acknowledged at oral argument that expert testimony from

the prosecution on the issue of excessive force is “unusual” on a section 69 charge. It is

indeed unusual, and was here, both for the substance offered and the way in which it was

presented. In the course of his testimony, Sergeant Walle opined at one point that, taking

the officers’ version of events as true, Brown had engaged in “assaultive” conduct,

justifying the force the officers used in response, but for the most part his testimony was

presented as a general overview of the applicable law and the “defensive tactics” course

that he teaches to all officers in the RPD. The purpose of this tutorial was never made

clear to the jury, but the prosecutor did explain to the court—though not to the jury—that

she was concerned jurors could “get the wrong impression” about the aggressive tactics

these officers employed to subdue a fleeing 67-year-old: “[W]hen there’s a struggle,

especially with more than one officer, juries can get the wrong impression that . . . they’re

ganging up on him,” and when “there’s a knee strike to the ribs . . . which then is

24

followed by a punch, which is essentially a distraction blow, can seem [¶] . . . [¶]

excessive. But they are trained to use . . . these . . . tactics to get someone under control.”

The Evidence Code presupposes the presentation of expert testimony in the form

of reasoned opinions.8 That has the salutary effect of ensuring some degree of logical

rigor, which not only allows the foundation for an expert’s opinion to be properly

screened for reliability (see Sargon, supra, 55 Cal.4th at p. 769 [“[u]nder California law,

trial courts have a substantial ‘gatekeeping’ responsibility” to screen expert testimony for

admissibility]), but once past that threshold screen, helps keep its presentation to the jury

focused on subject matter circumscribed by its rationale for admission.9 The form of

8

See Evidence Code section 801, subdivision (a) (“If a witness is testifying as an

expert, his testimony in the form of an opinion is limited to such an opinion” as is

“sufficiently beyond common experience that the opinion of an expert would assist the

trier of fact”), italics added; Evidence Code section 801, subdivision (b) (expert

testimony must be based on matter “that is of a type that reasonably may be relied upon

by an expert in forming an opinion upon the subject to which his testimony relates”),

italics added; Evidence Code section 802 (“A witness testifying in the form of an opinion

may state on direct examination the reasons for his opinion and the matter . . . upon

which it is based, unless he is precluded by law from using such reasons or matter as a

basis for his opinion. The court in its discretion may require that a witness before

testifying in the form of an opinion be first examined concerning the matter upon which

his opinion is based.”), italics added.

9

A pair of federal cases, both from the Sixth Circuit Court of Appeals, illustrate

the importance of ensuring at the “gatekeeping” stage that proposed testimony from a

police practices expert is specifically focused on matters within the expert’s

qualifications. In Berry v. City of Detroit (6th Cir. 1994) 25 F.3d 1342 (Berry), the

plaintiff in a section 1983 excessive force case presented a retired police officer witness

with expertise in police “defensive tactics.” (Id. at p. 1349.) The trial court found the

witness qualified to testify as an expert, and on the strength of his testimony about what

he described as deficient use-of-force training and disciplinary practices, a jury awarded a

large damage verdict. (Id. at pp. 1343–1344, 1348–1349.) Reversing, the Sixth Circuit

Court of Appeals held the expert’s testimony should have been excluded as unreliable.

(Id. at pp. 1348–1354.) “[T]here is no such ‘field’ as ‘police policies and practices.’ . . .

[T]here was no foundation at all for discipline testimony, even though it would fall under

the general label of ‘police policies and practices[,]’ . . . [a phrase that] is so broad as to

be devoid of meaning. It is like declaring an attorney an expert in the ‘law.’ ” (Id, at

p. 1352.) More recently, the Sixth Circuit, in another section 1983 excessive force case,

25

presentation here observed no such boundaries. Even assuming it was proper for the

prosecution to present Sergeant Walle’s testimony in the form we see here—no objection

having been interposed on that ground—the substance of the testimony should

nevertheless have been excluded. Because Sergeant Walle’s testimony (i) added nothing

to the common fund of information that any juror would have brought to the jury room,

and (ii) inaccurately addressed the governing law, he, in essence, invited the jury to

abdicate its duty to decide the issue of excessive force based on an erroneous

understanding of the law. Brown’s motion in limine seeking exclusion of the testimony

should therefore have been granted.

b. Specialized Knowledge

For the jury to sort out what happened here, specialized knowledge was not

required. Because these officers used “force . . . reduced to its most primitive form—the

bare hands” (Kopf, supra, 993 F.2d at p. 379), this was not a case in which the proper

handling of some specialized law enforcement tool (e.g. a gun, a dog, a taser, mace,

pepper spray) had to be explained. It may be to these officers’ credit that they chose to

use only physical force, but an expert was not required to make that elementary point.

Nor was it a matter of specialized knowledge that two officers are more effective than

one; that a second officer may come to the aid of another officer who is having trouble

subduing a suspect; or that, to gain control over a resisting suspect, law enforcement

officers are permitted to use their hands, fists, knees, feet or other body parts. The

question here was not whether two officers could join in the pursuit of Brown or use

bodily force against him, but whether they went overboard when they caught him. On

distinguished Berry, explaining, “We did not hold that an individual cannot ever testify as

an expert about some aspect of police affairs. Rather, the holding in Berry reasoned that

unqualified individuals could not broadly testify about an area in which they possessed

no specialized knowledge.” (Champion v. Outlook Nashville, Inc. (6th Cir. 2004) 380

F.3d 893, 908 (Champion). Because the expert in Champion focused his testimony on a

“discrete area of police practices about which he had specialized knowledge,” (id. at

p. 909) the court found no abuse of discretion in the admission of the testimony of a

police practices expert. (Id. at pp. 908–909.)

26

this crucial question of proportionality, technical jargon (“pain compliance,” “personal

weapons,” “control techniques”) and truisms about the amount of force officers may use

(enough to ensure that their target cannot engage them in “a fair fight”) add nothing to the

everyday understanding anyone would bring to the jury room.

In a different criminal context but one also raising the issue of the admissibility of

expert testimony on matters for jury determination under a legal standard of objective

reasonableness, the court excluded testimony from an expert in People v Czahara (1988)

203 Cal.App.3d 1468 (Czahara). In that case, the defendant shot his ex-girlfriend and

her new boyfriend, and was then convicted of multiple attempted murder convictions.

(Id. at p. 1471.) Claiming that he reacted to provocation, the defendant called a

psychiatrist as an expert witness who, according to an offer of proof, would have testified

that “the ordinarily reasonable person in the same circumstances would also have acted in

passion.” (Id. at p. 1476.) This testimony, the defendant argued, was relevant to the

objective, reasonable person component of his heat of passion defense. (Id. at p. 1477.)

Affirming the trial court’s exclusion of the testimony, the appellate court ruled that “the

adequacy of provocation is not a subject sufficiently beyond common experience that the

opinion of an expert would assist the trier of fact.” (Id. at p. 1478.)

The Czahara court explained, “the reasonableness of [the defendant’s] reaction is

left to the jurors precisely so that they may bring their common experience and their own

values to bear on the question of whether the provocation partially excused the violence.

. . . While courts have frequently held certain categories of provocation adequate or

inadequate as a matter of law, the modern tendency is to leave the jury free to apply

community norms to the question. [Citation.] [¶] Psychologists, psychiatrists or

sociologists may have specialized empirical knowledge regarding the range of reactions

to a given provocation, . . . [b]ut this information would not materially assist the jury in

its task; the jury must determine not only if the reaction is ordinary but if it is reasonable

. . . .” (Czahara, supra, 203 Cal.App.3d at p. 1478.) The ultimate determination of

reasonableness, the court held, “depends more on (perhaps unarticulated) community

norms” than on any empirical knowledge the expert could have supplied. (Ibid.; see

27

Burton v. Sanner (2012) 207 Cal.App.4th 12, 14 [expert “usurped the jury’s role” where

“[t]he test of reasonableness” on an issue of self defense was “an objective one for the

jury” and “it is just as competent as the expert to evaluate the evidence and draw

conclusions”].)

Similarly, here, it was important for a jury to apply a reasonableness standard

using its common knowledge. Once the jury determined that some use of force was

appropriate in subduing Brown, its task was to determine whether these officers

overreacted to the circumstances. To guide that assessment, Graham lays down a broad

test highlighting certain factors for consideration, all to be viewed from the standpoint of

the officer in the field. (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334,

343.) At the end of the day, however, the “ ‘[t]he test of reasonableness under the Fourth

Amendment is not capable of precise definition or mechanical application . . . .’ ”

(Graham, supra, 490 U.S. at p. 396, quoting Bell v. Wolfish (1979) 441 U.S. 520, 559.) It

is highly situational and fact-specific, and in applying the test, the jury’s task not only

permitted but required it to apply its own independent sense of reasonableness, using

whatever community norms jury members might bring to the issue.

c. Expert Testimony on the Law

“There are limits to expert testimony, not the least of which is the prohibition

against admission of an expert’s opinion on a question of law.” (Summers v. A.L. Gilbert

Co. (1999) 69 Cal.App.4th 1155, 1178.) Embedded in Sergeant Walle’s overview of his

mandatory “defensive tactics” training course was an explanation of the governing law.

At the start of Sergeant Walle’s examination, the prosecutor posed a series of direct

questions about the law, asking him “what does the law state is a reason for an officer to

use force?” and “[h]ow is reasonable force defined?” Sergeant Walle responded that the

legal authority for an officer’s use of force is “835(a) of the Penal Code” and explained

that all RPD officers are given training founded on Graham v. Connor.10

10

The Attorney General argues that Brown failed to preserve any specific

objection to Sergeant Walle’s testimony about the law. But this is not a case in which the

appeal raises “ ‘a wholly different basis of exclusion’ ” than the trial objections. (Cf.

28

Sergeant Walle then summarized his understanding of Graham for the jury, but

provided a truncated explanation, partially mentioning only one of the three factors the

Supreme Court held should be taken into account in assessing reasonableness—whether

the suspect is actively resisting or fleeing—never mentioning that the test is an objective

one, and repeatedly emphasizing “the law says you’re supposed to put yourself in the

shoe[s] of an officer at the time of the incident . . . because it is fluid and ever

changing[.]” The jury instructions in this case did not address Graham. As noted above,

the court instructed the jury using CALCRIM No. 2670, which advised it that “A peace

officer may use reasonable force to arrest or detain someone, to prevent escape, to

overcome resistance, or in self-defense,” but beyond that, it gave no instruction

explaining the criteria for the jury to use in distinguishing “reasonable” from “excessive”

force. Sergeant Walle supplied the jury’s only legal guidance on this crucial issue, and

the two “Graham factors” he omitted—the severity of the crime for which the suspect

was being sought, and the immediacy of the threat the suspect posed—were both

potentially important here.

The Attorney General points out that Sergeant Walle discussed the law only

briefly, by way of background explanation. The testimony may have been brief, but it

was powerful. Clearly, the jury focused on it. Perhaps not surprisingly, since the jury

had no other source of legal guidance on this key legal issue—by contrast to Hygh, where

an expert merely echoed the trial court’s instructions—it asked for a read-back during

deliberations of the “testimony of [Sergeant] Walle regarding training of police officers,

specifically regarding compliance strikes and reasonable vs excessive force . . . i.e. need

People v. Williams (1988) 44 Cal.3d 883, 907, fn. 6.) Brown objected to Sergeant

Walle’s testimony in its entirety, and in support of that objection he argued that Sergeant

Walle’s testimony contained no specialized content and invaded the province of the jury.

Because the prejudicial impact of admission of Sergeant Walle’s testimony over these

objections—both of which were well taken—was bound up with his testimony on the

law, the grounds for objection asserted by Brown were sufficient to “fairly inform the

trial court . . . of the specific reason or reasons the objecting party believes the evidence

should be excluded.” (People v. Partida (2005) 37 Cal.4th 428, 435.)

29

his entire testimony other than his introduction.” (Italics added.) Thus, even though

Sergeant Walle did not in terms advise the jury how to decide the ultimate issue, he did

manage to provide it with a legal standard for decision, thereby vesting himself with

authority as a source of legal knowledge. Summing up the problem with expert

testimony of this sort in Hygh, the Second Circuit Court of Appeals explained: “ ‘The

danger is that the jury may think that the ‘expert’ in the particular branch of the law

knows more than the judge—surely an inadmissible inference in our system of law.’ ”

(Hygh, supra, 961 F.2d at p. 364, quoting Marx & Co., Inc. v. Diners’ Club Inc. (2d Cir.

1977) 550 F.2d 505, 512.)

As in Burton, supra, 207 Cal.App.4th 12, which also involved a police expert’s

testimony on use-of-force training (including such matters as “pain compliance” and the

“use-of-force continuum”), “the court essentially allowed [Sergeant Walle] to instruct the

jury on his view of applicable legal principles and standards, even though he is

unqualified to do so . . . .” (Id. at p. 23.) Like his counterpart in Burton, Sergeant Walle

“has impressive credentials as an educator and authority figure” with RPD. (Id. at p. 24.)

Indeed, in addition to training other officers on “defensive tactics,” proper use of “pain

compliance” techniques, and the like, Sergeant Walle was an investigator in the Internal

Affairs Unit and currently sits on RPD’s Use of Force Board, where he evaluates the

reasonableness of RPD officers’ actions on a day-to-day basis. In view of those

credentials, the jury had every reason to look to him as a far better judge than they could

be of the reasonableness of those officers’ tactics.

The prosecutor was, of course, entitled to ensure the jury understood “there will

virtually always be a range of conduct that is reasonable” (Brown, supra, 171

Cal.App.4th at p. 537, italics in original), and that “ ‘ “[t]he Supreme Court’s definition

of reasonableness is . . . “comparatively generous to the police. . . .’ ” [Citation.]’ ” (Id.

at p. 528, quoting Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1103

(Munoz), disapproved on other grounds in Hayes v. County of San Diego (2013) 57

Cal.4th 622), but if she wished to emphasize these points, she was fully entitled to do so

by requesting a special jury instruction on the Graham factors and then elaborating on

30

that instruction in closing argument.11 While counsel is expected to present argument

anchored in the law, fairly read, the fact that an expert does so, and does so based on an

inaccurate rendition of the law, is an indication he has improperly stepped outside his role

as adjunct to the fact finder. (See Burton, supra, 207 Cal.App.4th at p. 24 [reversing and

finding miscarriage of justice where an expert tried to do what an advocate could not and

improperly testified that “he turns down most court cases offered to him, and he only

takes a case if he ‘wholeheartedly and truly believe[s] in the case itself’ ”].)12

d. Invasion of the Province of the Jury

Emphasizing that Officer Walle did not opine on the ultimate issue of

reasonableness, the Attorney General points out that “it was still up to the jury to decide

whether the officers’ actions in this case conformed to their training” and that “[t]he

jury’s verdict suggests . . . it found that the officers’ use of force was consistent with their

training.” Her framing of the issue is telling. Putting to one side that the defense never

contested the officers were properly trained,13 this line of argument highlights why the

11

Munoz, supra, 120 Cal. App.4th at page 1110 (“The quotation directing the jury

that the test of reasonableness ‘is not one of 20/20 hindsight, but one which necessarily

allows for the fact that police officers are often forced to make split-second decisions in

circumstances that are tense, uncertain, and rapidly evolving with the amount of force

which is necessary’ was taken directly from case law [citation] and is a correct statement

of law. Although not appropriate as an instruction from the court, there was nothing

wrong with these statements as part of closing argument.”).

12

This illustrates how the open-ended form of much of Sergeant Walle’s

testimony created other problems. Sergeant Walle obviously was not and could never

have been qualified as an expert in the law. But because his testimony was not presented

in a way that ensured he would address only a “discrete area of police practices about

which he had specialized knowledge” (Champion, supra, 380 F.3d at p. 909; see fn. 9,

ante), he managed to roam beyond his demonstrated area of expertise by folding his

testimony on the law into his training course tutorial.

13

In closing argument, Brown’s contention was not that Officers Moody and

Ricchiuto were poorly trained or incompetent, but that they made a mistake when they

perceived him as a threat, that they overreacted to the situation and beat him up in

retaliation for his defiance, and that their testimony about him swinging at them was

fabricated to cover up their mistake.

31

testimony should have been excluded, not why it should have been admitted. It concedes

the thrust of Brown’s argument for exclusion—that the true purpose of Sergeant Walle’s

testimony was not to educate the jury about control techniques they would otherwise

have had difficulty understanding, but instead to suggest that, because Officers Ricchiuto

and Moody conducted themselves “by the book,” in accordance with legally sanctioned

training, what they did was therefore within the bounds of the law. In effect, Brown

argues, Sergeant Walle’s testimony was an invitation to avoid the question of excessive

force altogether by conflating it with whether the officers did as they were trained to do.

He is correct, in our view.

The Attorney General also contends that the training testimony could have cut

both ways, since “if the jury found that the officers’ actions were inconsistent with their

training it would tend to support the argument that the force used was unreasonable.”

But the idea that RPD’s training regimen can serve as a valid Fourth Amendment

benchmark for reasonableness—available for either side to argue—rests on the premise

that the officers’ training itself is reasonable. We have no reason to doubt that premise as

a matter of law enforcement policy, but by placing the issue before the jury, the court

opened up a line of inquiry that was potentially distracting and confusing.14 As Brown’s

counsel put the issue in support of his motion in limine, “Whether the officers are trained

14

Brown points out that in the wake of a series of high profile controversies

involving use of force by police officers in different parts of the country, a number of law

enforcement agencies have adopted reforms to their use-of-force training. (See Apuzzo,

Police Rethink Long Tradition on Using Force, N.Y. Times (May 5, 2015) p. A1; see also

Michelle E. McStravick, The Shocking Truth: Law Enforcement’s Use and Abuse of

Tasers and the Need for Reform (2011) 56 Vill. L. Rev. 363, 384–385 [pointing out that

the Federal Law Enforcement Training Center (FLETC), the national training institute

that developed the use-of-force continuum, has made clear that, because of the formulaic

nature of the continuum, it “directly conflicts with” Graham’s conception that

“ ‘reasonableness under the Fourth Amendment is not capable of precise definition or

mechanical application’ ”, and as a result, FLETC has “done away with the use-of-force

continuum” in its own training materials, although many law enforcement agencies

around the country still use some form of the continuum in their training programs.].)

32

this way or not doesn’t necessarily make physical action reasonable.” Reasonableness

for Fourth Amendment purposes was for the jury to decide based on the facts of Brown’s

encounter with Officers Moody and Ricchiuto, not by using the officers’ training as a

proxy for it. Presented with the same line of argument the Attorney General makes here,

the Thompson court explained: “It may be that” adherence to local training rules might be

of interest to those “making discipline, promotion or salary decisions,” but “that

information was immaterial” in this trial. (Thompson, supra, 472 F.3d at p. 455.)

Because introducing an expert to address the issue of training “induced the jurors to

substitute their own independent conclusions for that of the expert[]” (Thompson, supra,

472 F.3d at p. 458), the court excluded testimony about officer training as more time

consumptive and confusing than probative under Federal Rule of Evidence 403 (the

federal counterpart to Evidence Code section 352) (id. at p. 453).

The balance of probative value versus potential to confuse and distract illustrates a

key difference between this case and the civil cases addressing the admissibility of

testimony from a police training expert on excessive force issues. In general, the scope

of relevant subject matter implicating issues of excessive force tends to be broader in

civil cases than it is in criminal cases, and as a result, the probative value of testimony

from an excessive force expert is typically stronger there. In section 1983 cases, for

example, the contested issues may include an officer’s good faith as part of a qualified

immunity defense,15 agency liability based on alleged excessive use of force pursuant to

official policy,16 or supervisorial liability under a deliberate indifference theory.17 And in

15

Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 839–840 (recognizing

availability of qualified immunity defense to section 1983 claims asserted in the

California courts); see Mendoza, supra, 206 Cal.App.4th at page 711; Martinez v. County

of Los Angeles (1996) 47 Cal.App.4th 334, 342 (Martinez).

16

Blankenhorn v. City of Orange (9th Cir. 2007) 485 F.3d 463, 484 (Blankenhorn)

(“Blankenhorn seeks to hold the City liable for the arresting officers’ alleged use of

excessive force. The City may be held liable under section 1983 if its deliberate policy

caused the constitutional violation alleged.”); see Monell v. New York City Dept. of Social

Services (1978) 436 U.S. 658, 694 (agency liability under section 1983 where misconduct

of individual officers was undertaken pursuant to official policy).

33

connection with state law tort claims, which frequently accompany section 1983 claims,

the scope of an officer’s duty to the suspect or others18 or the statutory defenses of

justification or immunity19 may also be at issue. Because the Fourth Amendment focuses

more narrowly on the moment force is used than state tort law does (Hayes v. County of

San Diego, supra, 57 Cal.4th at p. 638), placing less emphasis on matters preceding that

instant than tort law does, officer training and tactics can potentially be relevant for

purposes of tort liability, where it is not for Fourth Amendment purposes.

Here, the perceptions of Officers Moody and Ricchiuto as to the circumstances

they faced on the evening of November 14, 2011 were certainly in issue—and of course

they testified at length about what they were seeing and thinking—but those perceptions

and the officers’ responses to the situation were to be evaluated in objective terms. While

RPD’s programmatic approach to training might have been relevant had Brown attacked

the credibility of these two officers with charges of rogue conduct in violation of RPD

rules or policy, the prosecution never argued that expert testimony was needed because

Brown opened the door to it. Nor was there any basis to do so. Brown’s defense, which

17

Blankenhorn, supra, 485 F.3d at page 485 (“Blankenhorn also seeks to hold

Chief Romero liable for Nguyen’s alleged use of excessive force in punching

Blankenhorn during the arrest. Chief Romero can be held liable in his individual

capacity ‘ “for his own culpable action or inaction in the training, supervision, or control

of his subordinates; for his acquiescence in the constitutional deprivation[;] or for

conduct that showed a reckless or callous indifference to the rights of others.” ’ ”); see

Canton v. Harris (1989) 489 U.S. 378 (respondeat superior liability under section 1983

where supervisor was deliberately indifferent to misconduct of individual officers under

him).

18

Calatayud v. State of California (1998) 18 Cal.4th 1057 (officers brandishing

shotguns while making an arrest owed no duty of care to fellow officer who was shot

when one of the shotguns accidentally discharged).

19

Martinez, supra, 47 Cal.App.4th at page 349 & footnote 8 (defenses of official

justification under Pen. Code, § 196 and official immunity under Gov. Code, § 820.2

apply to wrongful death claim in civil excessive force suit against officers for shooting

knife-wielding man who was high on PCP).

34

focused on the “lawful performance” element of the section 69 charge, framed the

excessive force issue in purely Fourth Amendment terms. According to him, the

applicable rule of conduct was constitutional, not one found in a policy manual or in the

teachings of Sergeant Walle. As the court observed in Thompson, “police rules, practices

and regulations vary from place to place and from time to time,” and as a result, “are an

unreliable gauge by which to measure the objectivity and/or reasonableness of police

conduct” under the Fourth Amendment. (Thompson, supra, 472 F.3d at p. 455.)

e. Prejudice

The erroneous admission of Sergeant Walle’s testimony compounded the

prejudicial effect of the court’s failure to instruct on the lesser included offense of simple

assault. The nub of the matter is that the jury could have found that this 67-year-old’s

behavior in struggling against arrest and swinging at these two officers, if that is what he

did, was never a genuine threat to them. Had the jury undertaken a close examination of

the facts, as the reasonableness standard under Graham required it to do—without the

temptation to short-circuit its decisionmaking process by concluding that the officers

simply did as they were trained to do—Brown had a materially stronger case for a more

favorable outcome on the section 69 charge than he was able to muster with Sergeant

Walle’s testimony in the mix. Brown suggests that the distorting impact of Sergeant

Walle’s testimony so impaired the jury’s independence as to violate his constitutional

rights to a fair and impartial jury and to due process, justifying reversal under Chapman

v. California (1967) 386 U.S. 18, but we see no need for such strong medicine. It

suffices to say that, without the distraction of Sergeant Walle’s testimony, there was a

reasonable probability that he would have obtained a better result on the section 69

charge than he did. (People v. Watson (1956) 46 Cal.2d 818, 836.)

The law provides a generous mantle of protection to law enforcement officers

accused of excessive force, but also contemplates that, where such questions are serious

enough to be tried, juries will have a vital role in deciding what constitutes objectively

reasonable force, bringing with them their independent sense of the values of the

community in which they sit. Because Sergeant Walle’s testimony failed to meet two

35

fundamental requisites for expert testimony—that the expert must add something to the

common fund of knowledge the jury brings to its task, and that the expert must not usurp

the court’s role in giving the jury guidance on the law—the admission of his testimony

not only undercut the jury’s ability to perform this vital role, but prejudiced Brown’s

ability to mount a defense to the section 69 charge. 20

IV.

CONCLUSION AND DISPOSITION

The judgment is affirmed with the exception of Brown’s conviction for violating

section 69, which is conditionally reversed pursuant to the procedure outlined in People

v. Hayes, supra, 142 Cal.App.4th at page 184. If, after the filing of the remittitur in the

trial court, the prosecutor does not retry Brown on the charged offense within the time

limit of Penal Code section 1382, subdivision (a)(2), the trial court shall proceed as if the

remittitur constituted a modification of the judgment to reflect a conviction of the lesser

included offense of simple assault in violation of Penal Code section 240, and shall

resentence Brown accordingly.

20

Though the question is a close one, if the jury had been instructed on the lesser

included offense of simple assault and had returned a guilty verdict on that count, we

would not have reached the same conclusion as to the assault conviction. Because the

section 69 element of lawful performance of duty is not an element of assault, the

prejudice analysis would have been quite different. The issue of excessive force was

potentially relevant to assault, but in a different way than it was to the section 69 charge.

There is no evidence in the record to support a defense to assault that, in response to

unreasonable or excessive force by the officers, Brown used a “degree of force” that he

“actually believe[d]” was reasonably necessary to protect himself. (CALCRIM No.

2670.) Brown may have flailed reflexively at the officers, but he did not testify that he

was trying to defend himself. Thus, we conclude there is no reasonable likelihood of

outright acquittal for his conduct in the fracas leading to his arrest. As Brown’s counsel

argued in his opening brief, the scenario in which the jury found that Brown swung at the

officers would support a conviction for “simple assault rather than forcible resistance to

lawful police conduct under section 69. That view of the facts—i.e., that there was

improper or excessive use of force on both sides—was frankly the most plausible

interpretation of the evidence.”

36

_________________________

Streeter, J.

I concur:

_________________________

Rivera, J.

A141172/People v. Brown

37

Concurring opinion of Ruvolo, P. J.

I concur with the majority that the conviction for resisting an officer in the

performance of lawful duties (Pen. Code, § 69) must be reversed because the trial court

failed to instruct the jury on the lesser included offense of simple assault (Pen. Code,

§ 240), and there exists a reasonable probability that a different result would have

occurred had the jury been given the omitted instruction.

Because this conviction must be reversed on this principal ground, there is no need

to discuss the issue of the alleged erroneous admission of expert testimony posited as an

alternative ground for reversal, let alone publish a discursive opinion on this legally and

factually complex subject. Indeed, Brown’s appellate counsel agreed at oral argument

that if the Penal Code section 69 conviction were to be reversed based on the failure to

instruct on the lesser offense of simple assault, there was no need to decide the alternative

evidentiary ground for reversal.

___________________________________

RUVOLO, P. J.

A141172, People v. Brown

1

People v. Brown (A141172)

Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Mary Ann O’Malley

Counsel for Defendant and Appellant: Jonathan Soglin, Executive Director

J. Bradley O’Connell, Assistant Director

First District Appellate Project

Counsel for Plaintiff and Respondent: Kamala D. Harris

Attorney General of California

Jeffrey M. Laurence

Acting Senior Assistant Attorney General

Gregg E. Zywicke

Deputy Attorney General

Bruce M. Slavin

Deputy Attorney General

2