People v. Brown, A141172

• Citation: 245 Cal.App.4th 140,199 Cal.Rptr.3d 303
• Decision Date: 25 February 2016
• Docket Number: A141172
• Parties: The PEOPLE, Plaintiff and Respondent, v. Wilbert BROWN, Defendant and Appellant.
• Court: California Court of Appeals

245 Cal.App.4th 140

199 Cal.Rptr.3d 303

The PEOPLE, Plaintiff and Respondent,

v.Wilbert BROWN, Defendant and Appellant.

A141172

Court of Appeal, First District, Division 4, California.

Filed February 25, 2016

As Modified on Denial of Rehearing March 23, 2016

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.

Streeter

, J.

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, 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 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 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 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...