stating expert "improperly stepped outside his role as adjunct to the fact finder" by summarizing his understanding of Graham to the jury
How later courts described this case
- stating expert "improperly stepped outside his role as adjunct to the fact finder" by summarizing his understanding of Graham to the jury
- “[O]fficer training and tactics can potentially be relevant for purposes of tort liability.”
Written by the judges who cited it.
The opinion
RUVOLO, P. J.,
Concurring. — 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.
*174 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.
A petition for a rehearing was denied March 23, 2016, and the opinion was modified to read as printed above.