People v. Richards
| Citation | 227 Cal.Rptr.3d 95,18 Cal.App.5th 549 |
| Decision Date | 15 December 2017 |
| Docket Number | B275518 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jasmine Nicole RICHARDS, Defendant and Appellant. |
Covington & Burling, Doug Sprague, Neha Jaganathan, San Francisco, Rebecca Van Tassell, KeAndra Barlow, Los Angeles, and John Nelson for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Mathews, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Jasmine Nicole Richards appeals from the judgment following a jury trial in which she was convicted of one count of attempting to take another person from the lawful custody of a peace officer by means of a riot in violation of Penal Code sections 405a and 664.1 Imposition of sentence was suspended and Richards was placed on probation, including a condition of 90 days in county jail.
Richards was a participant in a "Black Lives Matter" demonstration on August 29, 2015. During the demonstration, several demonstrators, including Richards, attempted to prevent police officers from arresting a suspect, Benita Escoe, who had been involved in an earlier altercation at a restaurant. The evidence showed that Richards and at least one other demonstrator physically attempted to take Escoe away from the police while an officer was attempting to handcuff Escoe.
On appeal, Richards argues that: (1) the trial court erroneously failed to give a sua sponte jury instruction on the lesser included offense of rescue; (2) the trial court erred in declining to give an instruction on mistake of fact based upon the defense theory that Richards did not know Escoe was in lawful police custody; and (3) the trial court made several erroneous and prejudicial evidentiary rulings. We agree that attempted rescue is a lesser included offense of an attempted violation of section 405a, and that the trial court committed reversible error in failing to give a sua sponte instruction on attempted rescue. We find no error with respect to the other issues that Richards raises. We therefore reverse the conviction and remand for retrial or, at the discretion of the prosecution, for resentencing on the lesser included offense of attempted rescue under section 4550.
On August 29, 2015, about 4:20 p.m., Pasadena Police Officers Krikorian and Covarrubias received a call about a possible battery incident at the Las Comadres restaurant on Fair Oaks Avenue. When they arrived at the scene, two other officers were already there and had detained someone, who was later identified as Benita Escoe. Krikorian spoke to a woman named Guadelupe Rodriguez, who told Krikorian that she had received a telephone call from her mother, Augustina Rodriquez, telling her that a suspect had punched Augustina in the face and then left the store where Augustina worked. Guadelupe said that she confronted the suspect, Escoe, and that Escoe then punched and kicked her while Guadelupe hit back in self-defense. The altercation concerned a dispute at Augustina's restaurant concerning the restaurant's refusal to accept Escoe's credit card.
Krikorian spoke to Escoe, who did not want to talk other than to express a concern about getting her phone back. Krikorian and Covarrubias decided that they would place Escoe under arrest for battery. The officers informed Escoe that she was under arrest.
At that point, about 10 to 15 persons who were demonstrating across Fair Oaks Avenue at La Pintoresca Park, including Richards, approached the officers. They were chanting, "Black Lives Matter," and also yelling profanities at the officers. The demonstrators formed a half-circle around the officers, who were attempting to put Escoe in a police car. Escoe walked away into the group of demonstrators, which formed a "bubble" around her. Richards told Escoe that she did not need to tell the officers anything, and, "You stay here with me; I got you." The officers backed away from the situation to avoid a physical confrontation. Krikorian called for assistance.
The police had learned of the demonstration in advance and had been monitoring it with patrol units and a helicopter. Several officers responded to Krikorian's call for assistance, including Officers Garcia and Bzdigian. Bzdigian observed a small group of protesters move Escoe across the street and into the park.
After the officers had verified that the victims were willing to proceed with a citizen's arrest and prosecution of Escoe, Bzdigian and Garcia drove around to the other side of the park, on Raymond Avenue, where they were met by several more officers. The officers had formulated a plan to arrest Escoe at a time when she separated herself from the group. The protesters were yelling various slogans at the officers, such as "fuck the police" and "justice for Kendrec McDade."
Before driving around the park to the Raymond Avenue side, Garcia had observed Escoe walking over to a bush in the park with two or three demonstrators, where Escoe attempted to conceal herself. While the majority of the demonstrators was occupied with Bzdigian and Garcia on the Raymond Avenue side, Officers Ling and Cordova drove around to the Fair Oaks side of the park in an effort to apprehend Escoe away from most of the demonstrators. As Ling and Cordova drove into the park from the Fair Oaks side, Bzdigian and Garcia started walking from the other side of the park toward Escoe. Escoe then started walking toward the group of demonstrators. At that point, Richards said something to the crowd that Garcia interpreted as a direction to surround the officers.
The officers made a video recording of events at the park, which was introduced and played at trial. The transcript of the recording quotes Richards saying around this time:
As the officers approached Escoe, the crowd surrounded her. Garcia walked through the demonstrators and advised the crowd that the officers were going to arrest Escoe, "and that if anybody interfered, they would be arrested for interfering with our investigation."
An unidentified man was standing next to Escoe. Garcia walked up to Escoe, grabbed her left arm, and told her that she was under arrest. Escoe tried to pull away. At that point, Richards stepped between them, and the unidentified man started pulling Escoe by her other arm. Bzdigian arrived and the officers were able to pull Escoe away from Richards and the unidentified man, and Garcia attempted to place Escoe in handcuffs.
As Garcia was attempting to apply a handcuff to Escoe's left hand, Richards "jumped in" and grabbed Escoe by her other arm, pulling Escoe away from Garcia. Garcia said, Bzdigian used his forearm to push Richards to the ground. Ling arrived and helped Garcia place the other handcuff on Escoe.
After Bzdigian pushed Richards, she said, After some additional exchanges, Richards told the officers, "Put your badge down, get fucked up";
After Bzdigian pushed Richards to the ground, another protester in the group also stated, Bzdigian testified that the initials "PDL" referred to "Pasadena Denver Lanes," a street gang in the city of Pasadena.
Escoe ultimately pleaded no contest to one count of misdemeanor battery and one count of resisting an officer in the performance of his or her duty.
Richards did not present any evidence in her case. During closing, Richards argued that Escoe was not in lawful custody; Escoe was not in custody at all at the time that the officers pulled her away from Richards; the demonstrators were engaged in a peaceful protest, not a riot; there was no force or violence, or immediate threat of force or violence; and there was no proof beyond a reasonable doubt that Richards had a specific intent to take Escoe from the police.
Richards was convicted of an attempted violation of section 405a. That section punishes anyone who "participates in the taking by means of a riot of another person from the lawful custody of a peace officer."2 Section 404, subdivision (a) defines "riot" as "[a]ny use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law."
Richards argues that the jury should have been instructed on the elements of attempted rescue under section 4550 as well as the charged offense of an attempted violation of section 405a. Section 4550 punishes anyone "who rescues or attempts to rescue, or aids another person in rescuing or attempting to rescue any prisoner from any prison, or prison road camp or any jail or county road camp, or from any officer or person having him or her in lawful custody." (§ 4550.)
During the jury instruction conference, the trial court informed the parties that it had...
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...offenses when the evidence raises questions regarding whether every element of a charged offense is present."]; People v. Richards (2017) 18 Cal.App.5th 549, 559-560 [trial court erred in not instructing on a lesser included offense where the jury could have found the People did not prove o......
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People v. Gonzalez
...... evidence supports the greater offense, we decide the. appropriate remedy on remand is that the prosecutor must be. given the option of retrying the greater offense, or. accepting a reduction to the lesser offense. ( People v. Richards (2017) 18 Cal.App.5th 549, 560-561.). . . 3. Witness or Victim Dissuasion . . . The. trial court instructed the jury with modified versions of. CALCRIM Nos. 2622 and 2623 on the offense of witness or. ......
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People v. Gonzalez
...... evidence supports the greater offense, we decide the. appropriate remedy on remand is that the prosecutor must be. given the option of retrying the greater offense, or. accepting a reduction to the lesser offense. ( People v. Richards (2017) 18 Cal.App.5th 549, 560-561.). . . 3. Witness or Victim Dissuasion . . . The. trial court instructed the jury with modified versions of. CALCRIM Nos. 2622 and 2623 on the offense of witness or. ......
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People v. Gonzalez
...must be given the option of retrying the greater offense, or accepting a reduction to the lesser offense. (People v. Richards (2017) 18 Cal.App.5th 549, 560-561.) 3. Witness or Victim Dissuasion The trial court instructed the jury with modified versions of CALCRIM Nos. 2622 and 2623 on the ......