Majority
Opinion
Roland Delahoussaye appeals after he was convicted in a court trial of one count of felony battery on a peace officer (Pen. Code,
Facts
In September of 1985, appellant was living with Fred Starr on Sussex Street in San Francisco. Mr. Starr returned home one evening about 9 p.m. and he and appellant conversed. Appellant—who apparently had not gone to work for two days—told Mr. Starr that he had found an answer to his personal problems in religion and God.[2] Shortly afterward, appellant spoke with his uncle on the phone and shared these same revelations; appellant said he had a message from God. The conversation made no sense to appellant’s uncle who had never heard appellant speak that way before; consequently, he hung up on him.
After his uncle hung up, appellant turned up the volume on a television set. Starr, who was trying to sleep, told appellant to turn down the volume or leave the house. Appellant responded by saying “this is not me talking. This is he talking through me . . . .” Appellant also told Starr not to look into his eyes. Appellant became very excited and told Starr he might have to “bust the place up.”
Starr then left his home and went next door to use a neighbor’s phone. He called the police and told the dispatcher that his housemate was “acting irrationally and appeared to be on the verge of violence.”
Officers William Wohler and Kevin Whalen responded to the Sussex Street address to investigate a complaint concerning an “insane person.” The officers arrived in a marked police cruiser and both were dressed in full San Francisco Police Department uniforms. They met Mr. Starr near his residence; Starr told them his housemate had gone crazy, tom up his house,
1 Subsequent statutory references are to the Penal Code unless otherwise noted.
2 Although appellant held a masters of science degree in engineering, he had only been sporadically employed over the previous seven years. At the time of the assaults, he was employed as a civil engineer for the Navy. Appellant felt his main personal problem was his inability to maintain full-time employment.
The officers drove down the street and spotted appellant standing in the doorway of a nearby house. Appellant approached the police car and asked the officers if they had a problem. Both officers got out of the car and positioned themselves on either side of appellant. Appellant told them not to look into his eyes. The officers told appellant they were there to help him, and tried to calm him down.
Appellant walked to within three to four feet of Officer Wohler, told him again not to look into his eyes, and assumed a “boxing stance” with his fists partially clenched. According to Wohler, appellant acted “aggressive” and seemed on the verge of hitting him or coming at him. Officer Wohler responded by spraying mace on appellant’s face.
The mace had no apparent effect on appellant, who immediately turned around and charged Officer Whalen. Whalen pushed appellant away and called for help on the radio. Meanwhile, Wohler tried to grab appellant by the arm and then jumped on his back in order to grab him around the neck. While appellant and Wohler were struggling, Whalen hit appellant once in the rib area with his baton as hard as he could, but the blow had no effect. Whalen then hit appellant over the head as hard as he could, but again the blow did not slow appellant’s struggle. Whalen then grabbed appellant around the head and working together the two officers managed to force him to the ground.
On the ground, Whalen held down appellant’s shoulders while Wohler tried to hold down his legs. As he was being subdued, appellant grabbed for Wohler’s bolstered gun and he and Wohler struggled for the weapon. During this struggle, the gun came out of the holster and Wohler shoved his left index finger into the trigger housing and grabbed the barrel with his right hand. Appellant placed his finger directly over Wohler’s in the trigger housing; he squeezed the trigger and the gun discharged, shooting Wohler in the right hand.
Two more rounds were fired but did not hit anyone. Eventually Wohler managed to pry the gun from appellant’s grip and threw it into the street. Shortly afterward, two more officers arrived and with the help of a fifth officer they managed to restrain and handcuff appellant.
Defense
Appellant testified in his own behalf and claimed that the police started hitting him without provocation after he approached them. He tried to push
With respect to Officer Wohler, appellant was charged with assault with a firearm on a peace officer (§ 245, subd. (c)) and firearm use and great bodily injury enhancements (§§ 12022.5, 12022.7). He was convicted of the lesser offense of battery on a peace officer resulting in injury (§ 243, subd. (c)).
With respect to Officer Whalen, appellant was charged with battery on a peace officer resulting in injury (§ 243, subd. (c)) and convicted of the lesser included offense of simple assault on a peace officer (§ 241, subd. (b)).
Discussion
A. Substantial Evidence.
Appellant first contends the evidence does not support his convictions. We disagree.
To constitute the criminal conduct proscribed by sections 243, subdivision (c) and 241 subdivision (b), the assault or battery must be on a peace officer who is “engaged in the performance of his or her duties.” A peace officer is not “engaged in the performance of his or her duties” within the meaning of these statutes if he arrests a person unlawfully or uses excessive force in making the arrest. (People v. Curtis (1969) 70 Cal.2d 347 , 357, fn. 9 [ 74 Cal.Rptr. 713 , 450 P.2d 33 ]; People v. Burres (1980) 101 Cal.App.3d 341 , 355-356 [ 161 Cal.Rptr. 593 ].) In appellant’s view, although the police had sufficient cause to detain and arrest him, the record does not support a finding that the officers used appropriate force in making the arrest. In short, appellant contends the record is susceptible to only one interpretation; namely, that the police used excessive force in arresting him.
We note first that appellant concedes the officers had the right to detain him pursuant to the emergency detention provisions of Welfare and Institutions Code section 5150. This section permits a police officer to detain any
Nevertheless, appellant contends the officers used excessive force— and specifically they had no cause to mace him—in making the detention. We disagree.
As appellant himself acknowledges, it is a pure question of fact whether a police officer has used reasonable force in detaining or arresting a defendant. (People v. Curtis, supra, 70 Cal.2d at p. 359.) Consequently, we only need determine if there is sufficient evidence in the record such that a reasonable trier of fact could conclude that the force used in this case was reasonable. (People v. Johnson (1980) 26 Cal.3d 557 , 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 , 16 A.L.R.4th 1255 ].) We may not reweigh the facts or substitute our judgment for that of the trial court.
Here, before the encounter, Officers Wohler and Whalen were aware that appellant had been described as “an insane person”; they had additionally learned from Mr. Starr that appellant had “gone crazy,” torn up Starr’s house, and chased him outside. When they met appellant he acted oddly, and told the officers not to look into his eyes. Appellant then approached Officer Wohler, assumed a fighting stance, and, according to Wohler, appeared as if he were about to hit or come at him. It was only at this point that Wohler sprayed appellant with mace. In our view, a reasonable trier of fact could find that Wohler reasonably believed he was about to be attacked and took measures to defend himself which were appropriate to the threat.
As shown by the statement of facts, the force employed in the rest of the struggle can hardly be deemed excessive in light of appellant’s size and apparent strength; in fact, far from being excessive, the force used seemed barely sufficient to subdue appellant.
3 “To constitute probable cause to detain a person pursuant to section 5150, a state of facts must be known to the peace officer (or other authorized person) that would lead a person of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person detained is mentally disordered and is a danger to himself or herself or is gravely disabled. In justifying the particular intrusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his or her belief or suspicion.” (People v. Triplett (1983) 144 Cal.App.3d 283 , 287-288 [ 192 Cal.Rptr. 537 ].) Here, Officers Wohler and Whalen were dispatched to the Sussex Street address to investigate the report of an insane person; there, they met Mr. Starr who told them appellant had gone crazy, tom up his house, and chased him out. Once they encountered appellant, he told them not to look into his eyes and became extremely agitated. Based on these facts, we believe the officers clearly had cause to detain appellant under Welfare and Institutions Code section 5150.
B. The Conviction Under Section 243, Subdivision (c).
Appellant next contends we must reverse his conviction for battery on a peace officer resulting in injury (§ 243, subd. (c)) because this offense was neither charged nor a lesser included offense of any crime alleged in the information. We agree with this contention, and consequently reverse this conviction.
Our Supreme Court has stated that “[w]hen a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.] This reasoning rests upon a constitutional basis: ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ [Citation.]” (People v. West (1970) 3 Cal.3d 595 , 612 [ 91 Cal.Rptr. 385 , 477 P.2d 409 ]; see also People v. Lohbauer (1981) 29 Cal.3d 364 , 368 [ 173 Cal.Rptr. 453 , 627 P.2d 183 ]; People v. Thomas (1987) 43 Cal.3d 818 , 823 [ 239 Cal.Rptr. 307 , 740 P.2d 419 ].)
With respect to Officer Wohler, appellant was charged with assault with a firearm on a peace officer (§ 245, subd. (c))[4] and a great bodily injury enhancement (§ 12022.7). Although the evidence would have supported a conviction for those charges, the trial judge was “not really satisfied” that the People had proved the assault with a firearm on a peace officer. Consequently, the trial judge found appellant guilty of “the lesser included” offense of battery on a peace officer resulting in injury (§ 243, subd. (c)).[5] Although the trial judge realized a battery is not usually a lesser included offense of an assault, he reasoned that a battery was a lesser included offense
4 Section 245, subdivision (c) provides in pertinent part: “Every person who commits an assault with a firearm upon the person of a peace officer . . . and who knows or reasonably should know that the victim is a peace officer . . . engaged in the performance of his or her duties shall be punished by imprisonment in the state prison for four, six, or eight years.”
5 Section 243, subdivision (c) provides in pertinent part: “When a battery is committed against a peace officer . . . engaged in the performance of his or her duties, whether on or off duty . . . and the person committing the offense knows or reasonably should know that the victim is a peace officer . . . and an injury is inflicted on that victim, the battery is punishable . . . for a period of not more than one year, or by a fine of not more than two thousand dollars ($2,000), or by imprisonment in the state prison for 16 months, or two or three years.”
The People concede that battery on a peace officer is not a lesser included offense of an assault on a peace officer coupled with a great bodily injury enhancement. It is settled that battery is not a lesser included offense of assault, because assault may be committed without committing a battery. (People v. Jones (1981) 119 Cal.App.3d 749 , 754 [174 CaI.Rptr. 218].)[7] Moreover, our Supreme Court has held that a court may not consider enhancement allegations as part of the accusatory pleading for the purpose of defining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92 , 101 [192 CaI.Rptr. 748, 665 P.2d 520 ] ,)[8] Consequently, the People do not contend that the trial court’s reasoning was correct.
Having conceded the trial court’s error, the People instead argue appellant acquiesced in the conviction and thus waived notice of the lesser battery offense. We disagree. The People cite two cases in support of their position: People v. Francis (1969) 71 Cal.2d 66 [ 75 Cal.Rptr. 199 , 450 P.2d 591 ] and People v. Powell (1965) 236 Cal.App.2d 884 [ 46 Cal.Rptr. 417 ]. Both cases involved “slow pleas” of guilty; that is, the defendants submitted their cases to the trial court on the basis of the preliminary hearing transcript. (See Bunnell v. Superior Court (1975) 13 Cal.3d 592 , 605-606 [ 119 Cal.Rptr. 302 , 531 P.2d 1086 ].) In Francis, the trial court convicted the defendant of a crime (possession of marijuana) which was not a lesser included offense of the charge in the information. Nevertheless, the Supreme Court found reversal was not warranted because the defendant had acquiesced in the conviction. The court stated: “The preliminary hearing transcript contains evidence that would have supported a finding of guilt... of the crime of which [Francis] was convicted. As noted the case
6 Section 12022.7 provides in pertinent part: “Any person who, with the intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of three years, unless infliction of great bodily injury is an element of the offense of which he is convicted.”
7 An assault is an attempt to commit a battery coupled with the present ability to do so. (People v. Yeats (1977) 66 Cal.App.3d 874 , 878 [ 136 Cal.Rptr. 243 ].) “Every completed battery includes an assault, but if the assailant does not go beyond the attempted use of force or violence, then assault has been committed without battery.” (Ibid.)
8 In Wolcott, the Supreme Court held that an allegation of firearm use under section 12022.5 could not be considered in determining lesser included offenses. (Wolcott, supra, 34 Cal.3d at p. 101.) More generally, the court stated that “even if California could constitutionally consider enhancement allegations as part of the accusatory pleading for the purpose of defining lesser included offenses, we see no reason to adopt that course. Not only is the weight of authority against it, but the result would be to confuse the criminal trial.” (Ibid.)
Similarly, in People v. Powell, supra, the defendant submitted the case on the basis of the preliminary hearing transcript (a slow plea) and was found guilty of an offense (joyriding) which was neither charged nor a lesser included offense of a crime alleged in the information. The Court of Appeal concluded this did not require reversal of the conviction. The court observed that “[t]he record of the preliminary examination contains evidence which would support a finding of guilty of either of the two felonies charged or of the misdemeanor [joyriding conviction]. The trial consisted only of the stipulation that the case be submitted on that record. Defendant did not offer any evidence or make any argument, either at the preliminary or at the trial. In submitting the case as they did, neither defendant nor his counsel could rationally have anticipated anything other than a finding of guilty of some offense. We can have no doubt that defendant either intended to throw himself completely upon the mercy of the court, or else he had been advised in advance that the court would convict him of a lesser offense.” (236 Cal.App.2d at p. 887.)
By contrast, in the present case appellant did not submit his case on the basis of the preliminary hearing transcript. Instead, he had a court trial where he submitted evidence, cross-examined witnesses, and argued for an acquittal on the assault with a deadly weapon charge on the theory he did not intend to shoot the officer. (See People v. Burres, supra, 101 Cal.App.3d at p. 346.) Consequently, we believe the present case is controlled by People v. Lewis (1982) 131 Cal.App.3d 457 [ 182 Cal.Rptr. 471 ], where the court held that the no reversal rule articulated in Francis and Powell does not apply where the defendant contends he is not guilty and has a full court trial. (Id. at p. 460.)
Moreover, there is nothing in the record which indicates appellant or his counsel positively consented to the conviction on the lesser nonincluded offense. (See People v. Lewis, supra, 131 Cal.App.3d at p. 460; In re Stanley B. (1971) 17 Cal.App.3d 530 [ 95 Cal.Rptr. 116 ], disapproved in In re Robert G. (1982) 31 Cal.3d 437 , 445 [ 182 Cal.Rptr. 644 , 644 P.2d 837 ].) Initially, appellant’s counsel appeared to question the court’s power to
Finally, the Supreme Court’s recent decision in People v. Toro (1989) 47 Cal.3d 966 [ 254 Cal.Rptr. 811 , 766 P.2d 577 ] does not change our analysis in this case. In Toro the Supreme Court considered whether the defendant’s failure to object to jury instructions on an uncharged lesser related offense amounted to implied consent to have the jury consider that offense. The Supreme Court concluded that on the facts of the case before it the failure to object did amount to implied consent to have the jury consider the instructions on the lesser related offense. (Id., at pp. 970, 977.)
In our view, the facts in the present case are distinguishable from those in Toro and prevent us from finding that the appellant here impliedly consented to conviction for the lesser related offense.
In Toro, the defendant was charged with attempted murder and assault with a deadly weapon. (47 Cal. 3d at p. 970.) After a conference on jury instructions the trial judge listed by CALJIC number each of the instructions he proposed to give “ ‘absent any objection.’ ” (Id., at p. 977.) Among those instructions was one on battery with serious bodily injury—a lesser related (though not necessarily included) offense of the crimes charged in the information. The defendant did not object to the proposed instructions on battery with serious bodily injury, and did not later object to the jury’s consideration of this offense. Moreover, defense counsel offered no evidence in his client’s behalf and conceded that defendant had stabbed the victim. Based on these facts, the Supreme Court found that the failure to object may be viewed as an implied consent to the jury’s consideration of the lesser related offense. (Ibid.)
By contrast, in the present case appellant was convicted of the lesser related offense after a court trial. He was not given an opportunity to object
9 The People point to the following colloquy between the court and defense counsel as evidence appellant consented to the conviction on the lesser nonincluded offense. “[Defense Counsel]: One final point of clarification, unless I am interrupting your Honor, [j]] The Court: Yes? . . . [j]] [Defense Counsel]: That would be because of the way that you have treated again Count I, the charge on the officer in 118216? [ft] The Court: Yes. [ft] [Defense Counsel]: I assume that you are finding an injury and you are finding the adequate intent for battery that results in an injury, the required medical attention, which I understand, but there will be no finding, you will not find a GBI, since it is I think to some extent subsumed? [ft] The Court: Yes. [j[] [Defense Counsel]: But, however, specifically you are going to not find there was specific intent to shoot Wohler, or are you going to make a specific finding? [j]] The Court: No. I find that there was an injury as reflected in 243(c). It was caused during a battery on a police officer in the performance of his duty through the personal use of a firearm by the defendant. And this is all a lesser included offense to the 245(c) and the 12022.7. [ft] [Defense Counsel]: Thank you.” We do not believe this exchange indicates appellant acquiesced in the court’s ruling. At most, it was a request for clarification of the court’s ruling.
In these circumstances we do not believe that appellant’s failure to object amounts to implied consent to conviction on a lesser related offense. Here, the trial court represented that the battery conviction was a lesser included offense; consequently, appellant’s failure to object cannot be viewed as an implied consent to conviction on a lesser related offense.
Our decision is also supported by People v. Delgado (1989) 210 Cal.App.3d 458 [ 258 Cal.Rptr. 365 ]. There, the court found that, even after Toro, mere failure to object to findings of guilt on a lesser related offense announced by the court after it has found a defendant not guilty of the only offense with which he was charged does not support a reasonable inference of consent to conviction of the lesser related offenses. (Id., at p. 465.) The same is true here. Consequently, appellant did not implicitly or explicitly consent to the conviction on the lesser related offense.
The conviction and sentence imposed for the violation of section 243, subdivision (c) are reversed. In all other respects, the judgment is affirmed.
Barry-Deal, J., and Strankman, J., concurred.
Cases cited
- People v. Curtis 70 Cal.2d 347 at 357 p. 7
- People v. Burres 101 Cal.App.3d 341 at 355-356 p. 7
- People v. Johnson 26 Cal.3d 557 at 578 p. 8
- People v. West 3 Cal.3d 595 at 612 p. 9
- People v. Lohbauer 29 Cal.3d 364 at 368 p. 9
- People v. Thomas 43 Cal.3d 818 at 823 p. 9
- People v. Jones 119 Cal.App.3d 749 at 754 p. 10
- People v. Wolcott 34 Cal.3d 92 at 101 p. 10
- People v. Francis 71 Cal.2d 66 p. 10
- People v. Powell 236 Cal.App.2d 884 p. 10
- Bunnell v. Superior Court 13 Cal.3d 592 at 605-606 p. 10
- People v. Lewis 131 Cal.App.3d 457 p. 11
- Thornton v. Stanley B. 17 Cal.App.3d 530 p. 11
- People v. Robert G. 31 Cal.3d 437 at 445 p. 11
- People v. Toro 47 Cal.3d 966 p. 12
- People v. Delgado 210 Cal.App.3d 458 p. 13