People v. Williams CA5 ( 2020 )

Filed 9/15/20 P. v. Williams CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077722
Plaintiff and Respondent,
(Super. Ct. No. MF012770A)
v.
GLEN WILLIAMS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. David Wolf,
Judge.
Gabriel Bassan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
A jury convicted defendant Glen Williams of one count of battery by a prisoner on
a nonconfined person in violation of Penal Code section 4501.5 after he engaged in a
scuffle with correctional officers while in prison. The jury acquitted defendant of a
second count of battery as it related to another officer. Defendant challenges his
conviction, arguing the trial court reversibly erred in denying his request to instruct the
jury on self-defense because he contends there was evidence the officers used excessive
force against him.
We affirm the judgment.
FACTUAL BACKGROUND
On June 2, 2017, three officers began to escort defendant, an inmate, to his
assigned cell from a holding cell. Defendant physically resisted because he did not want
to return to his assigned cell. A scuffle ensued and defendant was subsequently charged
with kicking two of the escorting officers during the incident.
Prosecution
The three escorting officers involved in the June 2, 2017, incident and an
observing officer testified at trial.
Sergeant Toscano
Sergeant Michael Toscano worked as a correctional officer in the California
Correctional Institution, Tehachapi. He testified that on June 2, 2017, defendant asked to
speak to a sergeant; accordingly, Sergeant Toscano spoke with defendant at the holding
cell where defendant was being held. During their conversation, defendant told Sergeant
Toscano he did not want to return to his assigned cell. Instead, he wanted to be housed in
administrative segregation because he did not want to be with other inmates. Sergeant
Toscano explained “administrative segregation” is a prison unit where inmates are sent
when they commit a rule violation within the institution that warrants separation from the
general population. When in administrative segregation, an inmate is kept in restraints
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any time he leaves his cell. Sergeant Toscano could not put defendant in administrative
segregation without a reason. So, he informed defendant the officers were going to
transport him back to his assigned cell. Sergeant Toscano then asked Officer James
Robinson and Sergeant Brandon Gentry to assist him in escorting defendant back to his
assigned cell.
Defendant complied with Sergeant Toscano’s orders to submit to restraints; he
stood up, turned around to face the back of the holding cell, and placed his hands behind
his back and into the unlocked food port to permit the officers to handcuff him. Sergeant
Toscano handcuffed defendant and ordered him to step towards the back of the holding
cell; again, defendant complied. Sergeant Gentry then unlocked the holding cell door and
opened it. At the time, defendant’s legs were unrestrained. Officer Robinson approached
defendant, grabbed his left arm to secure him, and told him to step backwards out of the
holding cell; defendant again complied. At that point, no force had been used against
defendant.
Sergeant Toscano then heard a commotion and saw defendant "kick[ing] out his
legs” and trying to “pull away” from Officer Robinson. He saw defendant kick Sergeant
Gentry. Sergeant Toscano testified he “clearly remember[ed] seeing the defendant’s leg
make contact with … Sergeant Gentry[’s]” lower leg. Sergeant Toscano then saw the
officers take defendant to the ground almost simultaneously and defendant “was still
struggling … [and] kicking out his legs.” Sergeant Toscano ran to defendant and tried to
secure him from hitting or kicking anyone else by grabbing his ankles; defendant
continued to kick and twist from side to side.
Sergeant Toscano grabbed defendant’s pant legs and defendant continued to kick;
Sergeant Toscano lost control of one of defendant’s legs, and defendant kicked him in the
stomach. Sergeant Toscano backed away and struck defendant one time on his right
thigh with a baton to subdue him. Defendant stopped resisting, and Officer Robinson
secured his legs while Sergeant Toscano retrieved leg restraints. Sergeant Toscano put
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leg restraints on defendant, and defendant was returned to the holding cell. Sergeant
Toscano denied using any force against defendant during the incident besides striking
him once with the baton. He also denied sustaining any lasting injuries as a result of
defendant kicking him.
Officer Robinson
Officer Robinson also testified at trial to a series of events consistent with
Sergeant Toscano’s testimony. He recalled that on June 2, 2017, Sergeant Toscano asked
him and Sergeant Gentry to assist with escorting defendant from a holding cell to
defendant’s assigned cell and that defendant complied with Sergeant Toscano’s orders to
turn around, submit to handcuffs, and exit the holding cell backwards. Once defendant
stepped out of the cell, Officer Robinson placed his hand on defendant’s left biceps to
guide him towards his assigned cell; he denied squeezing defendant’s arm in a hard
manner. Defendant “became resistive and started tugging away”; he stated he was not
going back to his assigned cell. Defendant “stopped” his forward movement, “started
twisting his body,” and tried to break out of Officer Robinson’s grasp. While standing,
defendant began to kick backwards in Sergeant Gentry’s direction, though Officer
Robinson did not witness defendant’s foot strike Sergeant Gentry. After he saw
defendant kick towards Sergeant Gentry, Officer Robinson “responded and used [his]
physical strength and body weight and pulled [defendant] to the ground to prevent him
from further attacking or kicking anybody”; it happened “almost simultaneously.”
Before that point, Officer Robinson denied exerting any physical force on defendant.
Officer Robinson hooked his arm through defendant’s and pulled him down while
ordering defendant to “get down.” Officer Robinson, who weighed approximately 310
pounds, landed on top of defendant. Officer Robinson applied what he believed to be
necessary force with his hands and body weight on defendant’s upper left shoulder and
lower back, and he used his right knee on defendant’s lower back to “keep him from
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squirming”; defendant continued to kick. Officer Robinson then saw Sergeant Toscano
try to grab defendant’s feet to control them, but defendant kicked out of Sergeant
Toscano’s grasp and kicked him in the stomach. Officer Robinson saw defendant’s legs
strike Sergeant Toscano in the stomach. Sergeant Toscano let go of defendant’s feet and
struck him once with his baton. Defendant stopped resisting and became compliant.
Sergeant Gentry
Sergeant Gentry also testified to a version of events consistent with Officer
Robinson’s and Sergeant Toscano’s. He testified he was with Officer Robinson when
Sergeant Toscano radioed Officer Robinson to assist him with an escort; they both
responded to defendant’s holding cell. Defendant complied with orders as he was
handcuffed and exited the cell. Sergeant Gentry placed his left hand on the inside of
defendant’s right arm to escort him. No officer had used force against defendant at that
time. They took a step or two and then, while standing, defendant began to kick and
twist, kicking towards Sergeant Gentry multiple times. Defendant struck Sergeant
Gentry’s left shin and Sergeant Gentry felt sharp pain. Sergeant Gentry told defendant to
stop kicking him and to get on the ground. Defendant continued kicking and struck
Sergeant Gentry again on his right knee; again, Sergeant Gentry felt sharp pain. Sergeant
Gentry used his physical strength and his grasp of defendant’s right arm to pull defendant
to the ground. Defendant landed on his stomach. Sergeant Gentry denied kicking,
striking, hitting, or elbowing defendant. Sergeant Toscano then tried to grab defendant’s
legs but defendant continued to kick; he kicked Sergeant Toscano in the stomach with his
feet. Sergeant Toscano unholstered his baton and struck defendant one time in the right
thigh. Defendant became compliant and stopped resisting. The People introduced
photographs of Sergeant Gentry’s legs after the incident at trial; his left shin and his right
knee were red and both had abrasions on them which, he testified, resulted from
defendant’s kicks.
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Officer Pitt
Officer Seth Pitt witnessed the June 2, 2017, incident from the control booth. He
saw the officers escort defendant out of the holding cell, and then defendant started
twisting and kicking. He saw defendant kick Sergeant Gentry before defendant was
taken to the ground. Defendant continued to kick while he was on the ground, but
Officer Pitt did not see him strike anyone. He saw Sergeant Toscano take out his baton
and strike defendant and defendant then began complying.
Officer Blackburn
After the defense rested, the prosecutor called Lieutenant Scott Blackburn, who
testified he conducted a videotaped interview with defendant on June 2, 2017, because
defendant claimed he was the subject of unnecessary force. The videotaped interview
was played for the jury. In it, defendant explained to Lieutenant Blackburn that the
officers were trying to force him back to his cell while he refused; then, they slammed
him to the ground and started hitting him and accusing him of battery. Defendant stated
they “used illegal excessive force” by trying to force him back to program housing.
Defendant explained his resulting injuries and Lieutenant Blackburn videotaped them.
Defense
Defendant testified on his own behalf and denied hitting or striking any of the
officers that day. According to defendant, on the day of the incident, someone had
opened his cell door to permit him to slide out his breakfast tray. Defendant walked out
of the cell. An officer repeatedly ordered defendant to return to his cell. Defendant
refused and stated he wanted to go to restricted housing, also known as administrative
segregation. At trial, he explained prisoners were less restrained in “program housing,”
and he preferred restricted housing because he would not have to worry about conflicts.
Staff members responded to defendant, handcuffed him, and transferred him to a
holding cell where he waited. A few minutes later, Officer Robinson arrived and asked
defendant what was going on; defendant said he was refusing to return to program
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housing. Officer Robinson explained to defendant he could not refuse program housing
and then he left. Sergeant Toscano came to the holding cell. Defendant again said he
was refusing program housing. Sergeant Toscano also explained to defendant that he
could not refuse program housing before he walked away.
Sergeant Toscano returned a few minutes later with Officer Robinson and
Sergeant Gentry. Sergeant Toscano ordered defendant to turn around and submit to
handcuffs. Defendant continued to say he was refusing program housing, but he
complied with the directives because he believed the officers were taking him to
restricted housing. Defendant complied with orders to walk to the back of the holding
cell and then to back out of the cell. He confirmed no officer had touched him at that
point. Officer Robinson grabbed defendant’s arm when he exited the cell, and the
officers tried to pull him towards program housing.
Defendant realized the officers were trying to take him to program housing, so he
tried to bend towards the ground to resist without attacking the officers. The officers
pulled and dragged defendant as he tried to pull them to the ground, and “then they
pushed [defendant] on the ground.” Defendant struggled with the officers; after the
officers pushed him to the ground, “they kept pulling and dragging [defendant] and trying
to force [him] up.” Each time the officers pushed defendant down, they put their weight
on him. He could not move his legs. The third time the officers forced defendant up,
they “slammed [him] back down and kept ordering [him] to stop refusing to go to
[program] housing.” According to defendant, Sergeant Toscano punched him hard in his
forehead and told defendant that he had kicked the staff. Officer Robinson and Sergeant
Gentry then started hitting and punching defendant’s body before placing mechanical
restraints on his legs. After that, defendant stopped resisting. Defendant denied kicking
or intending to assault any of the officers.
After the officers placed defendant in leg restraints, Officer Robinson and another
assistant staff member escorted defendant back to his assigned cell. Later, they took him
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to restricted housing. According to defendant, during that escort, Officer Robinson and
the staff member pushed defendant to the ground. Sergeant Toscano and Sergeant Gentry
were in the room; they ran over and began hitting defendant’s face and body while telling
him to stop resisting even though he was not resisting. Defendant again denied kicking
or assaulting any officer at that time, stating he could not move his body because he was
lying on his stomach with the officers on top of him. The officers continued to hit him.
Eventually, they took defendant to restricted housing. Defendant recalled speaking with
a lieutenant after the incident, and the lieutenant photographed defendant’s body. The
photographs were admitted at trial; defendant testified the redness in the photographs
resulted from the officers hitting him. When shown pictures of Sergeant Gentry’s
injuries, defendant denied kicking him; however, he testified Sergeant Gentry could have
sustained the injuries while attacking defendant.
In closing, defense counsel argued, in part, that defendant did not willfully touch
the officers. Instead, he was flailing his legs and writhing his body in resistance; he did
not commit a willful battery. Defense counsel directed the jury to CALCRIM No. 3404,
noting that if the jury concluded defendant acted accidentally, it was a defense to the
charges.
Verdict
Defendant was charged with two violations of Penal Code section 4501.5, battery
on a nonconfined person—count 1 related to Sergeant Gentry and count 2 related to
Sergeant Toscano—as a result of the incident. The jury convicted defendant of count 1
(battery of Sergeant Gentry) but acquitted him of count 2 (battery of Officer Toscano).
The court sentenced defendant to eight years’ imprisonment.
DISCUSSION
In his sole issue on appeal, defendant contends the court reversibly erred in
refusing to instruct the jury on self-defense. Because defendant was acquitted of the
charge related to Sergeant Toscano, our review is limited to whether the court
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prejudicially erred in failing to give a self-defense instruction as it relates to the charge
pertaining to Sergeant Gentry.
Relevant Factual Background
After the presentation of evidence, defense counsel argued in support of a self-
defense jury instruction. He noted defendant “has denied flatly that he struck an officer,”
willfully or accidentally, but the officers testified defendant struck them. Accordingly,
there was a “dispute in that evidence,” and he was not limited to arguing the version of
events testified to by defendant. The jury was also not required to pick one version of
events or the other but rather could accept or reject parts of each witness’s testimony.
Thus, he argued, it was “consistent with the evidence … to … claim …
[defendant] did strike an officer, but that the strike of the officer didn’t follow the
officer’s timeline, and that … it was after the excessive use of force against [defendant].”
Defense counsel argued the evidence could support such an interpretation even though
“no witness ha[d] yet specifically stated as much.” He noted, “in order to instruct on self-
defense, the evidence only needs to raise a reasonable doubt about that issue,” even if
self-defense is not “actually asserted” or “actually proven.”
The prosecutor responded the evidence did not support a self-defense instruction.
He explained the officers testified defendant kicked Officer Gentry before any force was
used against defendant. Rather, the first use of force occurred when the officers took
defendant to the ground, which occurred after defendant kicked Officer Gentry. Then,
while on the ground, defendant kicked Sergeant Toscano while he was trying to restrain
defendant’s legs; “Sergeant Toscano had not used any force against the defendant at that
time.”
He further argued the “key here for the lack of self-defense is the defendant’s own
testimony.” Defendant denied kicking or striking the officers entirely. So, “the only way
that there could possibly be a self-defense argument is if the jury were to believe a
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portion of the officer’s testimony, disbelieve the defendant’s testimony, and come up
with … their own … separate scenario that has not been testified by any witness and is
not a logical inference based on the testimony of the officers, which under all of their
testimony there would be no self-defense argument in this case. And by the defendant’s
own testimony, he never used any act of force against him, therefore he didn’t act in self-
defense.”
The court agreed with the prosecution that the evidence did not support a self-
defense instruction. It concluded, “[L]ooking at the evidence, I must have some
evidence, not just speculation. And if I look at actual evidence that’s coming into the
trial, I don’t see any evidence of self-defense either from prosecution or the defense.”
Relatedly, the court concluded instructions on an officer’s lawful performance of duties
and use of force were not relevant.
I. Standard of Review
We review de novo a court’s decision not to give a particular jury instruction.
(See People v. Simon (2016) 1 Cal.5th 98, 133; People v. Manriquez (2005) 37 Cal.4th
547, 581; People v. Waidla (2000) 22 Cal.4th 690, 733.) An instruction requested by a
defendant need only be given “if it is supported by substantial evidence, that is, evidence
sufficient to deserve jury consideration.” (People v. Marshall (1997) 15 Cal.4th 1, 39;
accord, People v. Moon (2005) 37 Cal.4th 1, 30 [“a trial court may properly refuse an
instruction offered by the defendant if it … is not supported by substantial evidence”];
People v. Curtis (1994) 30 Cal.App.4th 1337, 1355 [“A trial court has no duty to instruct
the jury on a defense—even at the defendant’s request—unless the defense is supported
by substantial evidence”]; People v. Elize (1999) 71 Cal.App.4th 605, 615 [“in the event
that there is substantial evidence of a defense inconsistent with the defense advanced by
the defendant,” the court should give the instruction on the alternate defense “if the
defendant simply requests the instruction expressly”].) “The trial court need not give
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instructions based solely on conjecture and speculation.” (People v. Young (2005) 34
Cal.4th 1149, 1200.)
II. Applicable Law
To justify an act of self-defense, the defendant must have an honest and reasonable
belief bodily injury is imminent. (See People v. Minifie (1996) 13 Cal.4th 1055, 1064;
accord, People v. Perez (1970) 12 Cal.App.3d 232, 236 [the right of self-defense is based
upon the appearance of imminent peril to the person attacked].) Furthermore, the right to
self-defense is limited “to the use of such force as is reasonable under the circumstances.”
(People v. Minifie, supra, at p. 1065.) “Although the belief in the need to defend must be
objectively reasonable, a jury must consider what ‘would appear to be necessary to a
reasonable person in a similar situation and with similar knowledge ….’ [Citation.] It
judges reasonableness ‘from the point of view of a reasonable person in the position of
defendant ….’” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082–1083.) An inmate
has a right of self-defense against an officer only when the inmate is faced with an
improper use of force by the officer. (See People v. Coleman (1978) 84 Cal.App.3d
1016, 1023; accord, CALCRIM No. 2671 [“If a custodial officer uses unreasonable or
excessive force while (restraining a person … [or] overcoming a person’s resistance …),
that person may lawfully use reasonable force to defend himself or herself”].)
III. Analysis
Defendant contends the court erred in refusing his request for a self-defense
instruction because there was evidence the officers used excessive force. He argues the
lack of a self-defense instruction vitiated the jury’s findings and prejudiced the verdict,
particularly given that the jury acquitted him of count 2, evidencing that they accepted his
testimony in part. The People respond that defendant “failed to show any link between
his reasonable belief that he was in imminent danger and his subsequent action to support
the instruction.” They further contend that “piecing together selected portions of the
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prosecution’s case and the defense case does not lead to a reasonable scenario under
which [defendant] could claim self-defense.” We agree with the People.
The trial court did not err in refusing to give a self-defense instruction because
substantial evidence did not support it. (See People v. Blair (2005) 36 Cal.4th 686, 744–
745, overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919
[substantial evidence means “evidence from which a jury composed of reasonable
persons could conclude that the facts underlying the particular instruction exist”].)
“[B]oth self-defense and defense of others, whether perfect or imperfect, require an actual
fear of imminent harm.” (People v. Butler (2009) 46 Cal.4th 847, 868.)
Here, there was no evidence defendant feared imminent harm or was faced with
the improper use of force when he kicked Sergeant Gentry. Rather, all the officers
testified defendant kicked Sergeant Gentry before any force was used or threatened
against defendant. Put differently, while there was evidence the officers used force
against defendant and evidence that defendant kicked Officer Gentry, there was no
evidence defendant kicked Officer Gentry in response to the use of force. (See People v.
Wilson (1976) 62 Cal.App.3d 370, 374 [“the jury must conclude that defendant ‘was
actually in fear of his life or serious bodily injury and that the conduct of the other party
was such as to produce that state of mind in a reasonable person’”].) Thus, there was not
substantial evidence defendant acted in self-defense.
The cases cited by defendant are inapposite. (See People v. Elize, supra, 71
Cal.App.4th at pp. 610, 615–616; People v. Villanueva (2008) 169 Cal.App.4th 41, 44;
People v. Mayweather (1968) 259 Cal.App.2d 752, 755–757.) Unlike those cases, here
there was no evidence from which the jury could conclude defendant reasonably believed
he was in imminent danger of suffering bodily injury when he kicked Sergeant Gentry.
(Cf. People v. Elize, supra, at pp. 610, 615–616 [sufficient evidence to warrant self-
defense instruction where there was evidence defendant discharged gun after being
physically attacked by women]; People v. Villanueva, supra, at pp. 44, 50–54 [self-
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defense instruction warranted where there was evidence defendant shot at victim after
victim accelerated towards defendant in a car in an apparent attempt to run him over];
People v. Mayweather, supra, at pp. 755–757 [error not to give self-defense instruction
where there was evidence defendant and victim were engaged in a physical altercation
and the victim was approaching defendant when defendant shot him].) Rather, in the
instant case, the jury would have had to speculate regarding evidence it did not have—
evidence that defendant kicked Sergeant Gentry in response to the use or threatened use
of excessive force—in order to conclude defendant acted in self-defense. (See People v.
Perez, supra, 12 Cal.App.3d at p. 236 [“The right to have a jury instructed on self-
defense must be based upon more than imagined facts or inferences”]; accord, People v.
Hughes (2002) 27 Cal.4th 287, 365 [inference based only on speculation is not
reasonable].)
Accordingly, the court properly denied defendant’s request for a self-defense
instruction because substantial evidence did not support it. (See People v. Perez, supra,
12 Cal.App.3d at p. 236 [court did not err in refusing to instruct jury on self-defense and
possible effect of excessive force by officer where there was no appearance of imminent
peril to defendant when he assaulted officer given time interval between alleged use of
force by officer and defendant’s assault on officer]; People v. Sedeno (1974) 10 Cal.3d
703, 718, negative history on other grounds [“It is not error to refuse a request for
instructions on self-defense when there is no evidence from which it can be inferred that
the defendant feared great bodily harm or death at the hands of the victim”]; accord,
CALCRIM No. 3470 [providing a defendant is not guilty, “if (he/she) used force against
the other person in lawful (self-defense …),” which requires, in part, that “[t]he defendant
reasonably believed that (he/she …) was in imminent danger of suffering bodily injury
[or was in imminent danger of being touched unlawfully]”].)
We reject defendant’s contention.
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DISPOSITION
The judgment is affirmed.
PEÑA, J.
WE CONCUR:
FRANSON, Acting P.J.
DESANTOS, J.
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