Filed 6/23/16 P. v. Howard CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068181
Plaintiff and Respondent,
v. (Super. Ct. No. SCE344829)
MICHAEL BRIAN HOWARD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Evan P.
Kirvin, Judge. Affirmed.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Kristen Hernandez, Deputy Attorneys General, for Plaintiff and
Respondent. A jury convicted Michael Brian Howard of one count of resisting an executive
officer by force or violence. (Pen. Code,1 § 69.) The court sentenced him to a total term
of five years in state prison. On appeal, Howard contends the trial court erred by granting
the People's pretrial motion to exclude the testimony of his defense expert witness on the
issue of reasonable force and police department standards and procedures on the use of
force, which he maintains denied him his constitutional right to present a complete
defense.
Recently, in People v. Brown (2016) 245 Cal.App.4th 140, Division Four of the
Court of Appeal, First Appellate District, addressed whether expert testimony is
admissible on a criminal defendant's defense to a section 69 charge that his arrest or
detention was unlawful due to an officer's use of excessive force. As we explain, we
agree with Brown's rationale and apply it in this case, which compels us to hold that
Howard's proffered expert testimony was inadmissible and specialized knowledge was
not required here, where the law enforcement officers used only bodily force and bare
hands in restraining Howard. Under these circumstances, the jury was competent to
apply its own common sense in determining the objective reasonableness of the officers'
actions, and the expert's conclusions as to the lawfulness of their actions would have
usurped its role. Because the trial court did not err by excluding Howard's defense
expert's testimony, we affirm the judgment.
1 Undesignated statutory references are to the Penal Code. 2 FACTUAL AND PROCEDURAL BACKGROUND
On October 15, 2014, San Diego County Sheriff Deputies Douglas Roysdon and
David Sanchez, accompanied by explorer2 Andrew Ferrante, patrolled transient
encampments near a river bottom to conduct field interviews and write citations for
illegal lodging. Deputy Roysdon and Ferrante approached a tent and asked another
person to have Howard come out. After Howard did so, Deputy Roysdon engaged him in
a conversation, asking if he had contraband or anything illegal on him. Howard said no,
and the deputy asked Howard if he would consent to a search, to which Howard agreed.
During the search, the deputy found a syringe in Howard's front shorts pocket. When
asked about the syringe, Howard pulled away from Deputy Roysdon and took off running
through the encampment. Deputy Roysdon pursued on foot. Howard tripped and fell
face down onto his stomach. When Howard started to get back up, the deputy "jumped
on top [of Howard] to make sure he wouldn't get away."3
Deputy Roysdon described the skirmish: "I came up behind him on his back,
started putting downward pressure on his back with my chest, and put my arms kind of
around him . . . [t]o essentially detain him right there." As the deputy "bear hugg[ed]"
Howard, telling him to "Stop. Stop," Howard began "throwing his elbows back" at the
deputy. Deputy Roysdon stated Howard threw "at least six" elbows at him while
2 An "explorer" volunteers with the San Diego County Sheriff's Department in a program for individuals under the age of 21 who have an interest in a law enforcement career. 3 Deputy Roysdon stood five feet, eleven inches tall and weighed about 230 pounds with his gear on; Howard stood six feet, one inch tall and weighed about 185 pounds. 3 Ferrante estimated "10 to 20." After struggling for about 30 seconds, Deputy Roysdon
took Howard to the ground and yelled for Ferrante to get help.
Ferrante explained: "I ran up on them, I placed my left knee on the male's legs so
he could stop kicking them, I then placed my left hand on the lower right side of his back,
and I tried to take control of his right arm."4 Once Ferrante pinned down Howard's right
arm, Deputy Roysdon pulled out Howard's left arm from underneath his body to handcuff
him while Howard struggled. About a minute later, Deputy Sanchez arrived.
Deputy Sanchez stated: "I went to the location where they were struggling and I
placed my right knee on the top of the defendant's shoulders in about this area, base of
the neck top of the shoulders area, and told him to quit resisting and to . . . free his hands
up for [Deputy] Roysdon." After 30 to 45 seconds, Howard stopped resisting and the
deputies handcuffed him. Howard sustained a cut on the left side of his face from the
encounter.
In his trial brief, Howard reserved the right to call as a defense expert Jack Smith
on police procedures and use of force. Smith submitted a report stating he was a former
municipal police officer and sheriff for 35 years, and had been qualified as an expert on
police policy, procedures and tactics in federal and state courts. He stated he had made
recommendations to civilian commissions and boards pertaining to officer-involved
shootings and other uses of force regarding policy and procedure, training, tactics,
discipline and lawsuit defense. Smith stated he had reviewed documents including the
4 Ferrante was 5 feet, 11 inches tall and weighed 155 pounds at the time. 4 complaint and Howard's arrest report, and concluded that Howard and Deputy Roysdon
were involved in a consensual encounter, and while the force seemed objectively
reasonable under the circumstances, it was not "legally applied." He stated: "It appears
that Mr. Howard was escaping a consensual encounter, which he has the right to do. He
was not told that he was being detained or that he was under arrest. Accordingly, any
force used was not applied during the deputies' lawful course and scope of their duties."
He concluded: "It is my opinion that Mr. Howard was not detained or arrested in a
manner consistent with the deputy's training before he attempted to escape from a
consensual encounter."
The People moved to exclude Smith's testimony from trial on grounds it was
irrelevant, overly prejudicial, misstated the law and would unduly consume the court's
time. They argued Smith's conclusion regarding the use of force was based on an
inadmissible legal conclusion. The court granted the motion. It reasoned Smith's
testimony was (1) a legal conclusion within the jury's purview; (2) speculative; (3) not
outside the jury's common experience; and (4) under Evidence Code section 352, of
slight probative value that was "substantially outweighed by . . . the probability of its
admission . . . necessitat[ing] an undue consumption of time and creat[ing] a substantial
danger of undue prejudice and confusion for the jury."
DISCUSSION
Howard contends the court abused its discretion by excluding Smith's testimony,
which, as Howard summarizes it, would have described the training, policies and
underlying reasons for law enforcement requirements concerning consensual encounters,
5 detentions and arrests, as well as the proper use of force. Howard maintains the
testimony would have aided the jury in finding that Deputy Roysdon had failed to comply
with accepted standards and procedures for detaining a suspect and using appropriate
force, and would undermine the prosecution's claim that he must have known Deputy
Roysdon was engaging in the performance of his lawful duties. More specifically,
Howard argues the information provided by Smith was beyond the knowledge of the
typical juror; Smith's testimony was not unduly speculative as it was based on the
complaint, preliminary hearing transcript, Roysdon's arrest report, and Smith's extensive
experience; Smith did not misstate the law, as he stated his conclusions were based on the
fact Howard was not told he was being detained or under arrest, and the detention or
arrest was not consistent with the deputies' training; Smith would not have been rendering
a legal conclusion or invading the jury's purview as experts are permitted to give
testimony embracing the ultimate issue and Smith was not merely testifying to the
lawfulness of Deputy Roysdon's performance of his duty; and the probative value of
Smith's testimony was significant, as evidence of training and standard for performing an
officer's duties was relevant to the jury's determination that Deputy Roysdon was
engaged in the lawful performance of his duties, as well as whether Howard's reaction
was that of a reasonable person in a similar situation. On the latter point, Howard
maintains the court's discretion under Evidence Code section 352 must yield to his
constitutional right to present relevant evidence in his case, and because the court
completely excluded his only affirmative evidence, it denied him his fundamental right to
present a complete defense.
6 Following the filing of Howard's opening brief in this matter, the Court of Appeal
decided People v. Brown, supra, 245 Cal.App.4th 140, which addressed the admission of
police expert testimony in the context of the defendant's criminal prosecution for using
force or violence to resist an executive officer. Brown held that the trial court in that case
prejudicially erred by permitting the prosecution to present an expert police sergeant
witness on, among other issues, "police officer 'defensive tactics,' " the police's legal
authority to use reasonable force, the meaning of reasonable force, and the particular
police department's procedures and officer training. (Id. at pp. 148-149, 156-172.) We
asked the parties to brief Brown's impact, if any, and address their arguments below.
I. Legal Principles and Standard of Review Relating to Relevance of Evidence and
Admission of Expert Testimony
A. Relevance
Our Supreme Court has summarized the principles of relevance: " ' "Only relevant
evidence is admissible [citations], and, except as otherwise provided by statute, all
relevant evidence is admissible [citations]." [Citation.] "Relevant evidence is defined in
Evidence Code section 210 as evidence 'having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.' The
test of relevance is whether the evidence tends 'logically, naturally, and by reasonable
inference' to establish material facts such as identity, intent, or motive. [Citations.]"
[Citation.] [¶] . . .' [Citation.] '[T]he trial court has broad discretion to determine the
relevance of evidence.' [Citation.] This discretion extends to evidentiary rulings made
pursuant to Evidence Code section 352." (People v. Tully (2012) 54 Cal.4th 952, 1010;
7 see also People v. Merriman (2014) 60 Cal.4th 1, 74.) Under Evidence Code section 352,
trial courts have discretion to exclude evidence "if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury." (Evid. Code, § 352; People v. Masters (2016) 62 Cal.4th 1019,
1062.) The term "prejudice" used in the Evidence Code " 'refers to evidence that
uniquely tends to evoke an emotional bias against the defendant as an individual, and has
little to do with the legal issues raised in the trial.' " (Masters, at p. 1062.)
Appellate courts review trial court rulings regarding relevancy and admissibility
under Evidence Code section 352 for abuse of discretion. (People v. Merriman, supra,
60 Cal.4th at p. 74.) "We will not reverse a court's ruling on such matters unless it is
shown ' "the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice." ' " (Ibid.)
B. Expert Opinion Testimony
As a general rule, an expert may give testimony in the form of an opinion only if it
is "[r]elated to a subject that is sufficiently beyond common experience that the opinion
of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a); People v.
Sandoval (2015) 62 Cal.4th 394, 414-415; see People v. Dejourney (2011) 192
Cal.App.4th 1091, 1110.) Additionally, otherwise admissible expert opinion testimony
"is not objectionable because it embraces the ultimate issue to be decided by the trier of
fact." (Evid. Code, § 805; People v. Prunty (2015) 62 Cal.4th 59, 89.)
8 However, in cases " ' " '[w]here the jury is just as competent as the expert to
consider and weigh the evidence and draw the necessary conclusions, then the need for
expert testimony evaporates.' " ' " (Burton v. Sanner (2012) 207 Cal.App.4th 12, 19.)
Thus, "[e]xpert testimony will be excluded ' " 'when it would add nothing at all to the
jury's common fund of information, i.e., when "the subject of inquiry is one of such
common knowledge that men [and women] of ordinary education could reach a
conclusion as intelligently as the witness." ' " ' " (Ibid., italics added; see People v. Jones
(2012) 54 Cal.4th 1, 60; People v. Dejourney, supra, 192 Cal.App.4th at p. 1110.)
We likewise review for abuse of discretion the trial court's decision on whether a
particular subject is a proper one for expert opinion. (People v. Dejourney, supra, 192
Cal.App.4th at p. 1110; see Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 773.) "A ruling that constitutes an abuse of discretion has been
described as one that is 'so irrational or arbitrary that no reasonable person could agree
with it.' [Citation.] But the court's discretion is not unlimited, especially when . . . its
exercise implicates a party's ability to present its case. Rather, it must be exercised
within the confines of the applicable legal principles." (Sargon, at p. 773.)
II. The Section 69 Offense and Constitutional Standards Governing a Law Enforcement
Officer's Use of Excessive Force
In assessing the trial court's ruling as to the probative value and nature of Smith's
proffered testimony, it is necessary to outline the section 69 offense, as well as the
constitutional standards governing a law enforcement officer's use of force when
effectuating an arrest, investigatory stop, or other "seizure" under the Fourth Amendment.
9 Section 69 punishes those "who attempt[], by means of any threat or violence, to
deter or prevent an executive officer from performing any duty imposed upon such
officer by law, or who knowingly resist[], by the use of force or violence, such officer, in
the performance of his duty . . . ." The California Supreme Court has explained that
"section 69 'sets forth two separate ways in which an offense can be committed. The first
is attempting by threats or violence to deter or prevent an officer from performing a duty
imposed by law; the second is resisting by force or violence an officer in the performance
of his or her duty.' " (People v. Smith (2013) 57 Cal.4th 232, 240.) "The second way of
violating section 69 expressly requires that the defendant resist the officer 'by the use of
force or violence,' and it further requires that the officer was acting lawfully at the time of
the offense." (Id. at p. 241.)
Thus, a defendant cannot be convicted of a section 69 offense against an officer
engaged in the performance of his or her duties unless the officer was acting lawfully at
the time the offense was committed against the officer. (In re Manuel G. (1997) 16
Cal.4th 805, 815.) " 'The rule flows from the premise that because an officer has no duty
to take illegal action, he or she is not engaged in "duties," for purposes of an offense
defined in such terms, if the officer's conduct is unlawful . . . . [¶] . . . [T]he lawfulness
of the victim's conduct forms part of the corpus delicti of the offense.' " (Id. at p. 816; see
People v. Cruz (2008) 44 Cal.4th 636, 673.) "[W]here excessive force is used in making
what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant
may not be convicted of an offense which requires the officer to be engaged in the
performance of his duties." (People v. White (1980) 101 Cal.App.3d 161, 164; see also
10 People v. Delahoussaye (1989) 213 Cal.App.3d 1, 7 ["A peace officer is not 'engaged in
the performance of his or her duties' . . . if he arrests a person unlawfully or uses
excessive force in making the arrest"].)
"The Fourth Amendment's prohibition on 'unreasonable . . . seizures' protects
individuals from excessive force in the context of an arrest or seizure." (Thompson v.
County of Los Angeles (2006) 142 Cal.App.4th 154, 164, quoting U.S. Const., 4th
Amend.; see Graham v. Connor (1989) 490 U.S. 386, 394 (Graham).) Claims that an
officer used an excessive amount of force during an arrest or seizure are analyzed under
the "objective reasonableness" standard of the Fourth Amendment. (Graham, at p. 395;
Thompson, at p. 164.) Whether an officer acted reasonably in a particular use of force to
effect a seizure "must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight." (Graham, at p. 396; see Brown v.
Ransweiler (2009) 171 Cal.App.4th 516, 527.) This determination "requires a careful
balancing of ' "the nature and quality of the intrusion on the individual's Fourth
Amendment interests" ' against the countervailing governmental interests at stake.
[Citation.] Our Fourth Amendment jurisprudence has long recognized that the right to
make an arrest or investigatory stop necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it. [Citation.] Because '[t]he test of
reasonableness under the Fourth Amendment is not capable of precise definition or
mechanical application,' [citation], however, its proper application requires careful
attention to the facts and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the
11 officers or others, and whether he is actively resisting arrest or attempting to evade arrest
by flight." (Graham, at p. 396.) "In calculating whether the amount of force was
excessive, the trier of fact must recognize that peace officers are often forced to make
split-second judgments, in tense circumstances, concerning the amount of force
required." (Brown v. Ransweiler, at p. 528.)
III. People v. Brown
In People v. Brown, a case of first impression, the court addressed the
admissibility of use-of-force expert testimony where a criminal defendant defends against
a charge of resisting arrest by claiming an unlawful arrest due to excessive force. (People
v. Brown, supra, 245 Cal.App.4th at pp. 157, 163.) Brown, a 67-year-old African-
American male, was riding his bicycle on the sidewalk when a Richmond police officer
stopped him for wearing earphones and not having a light. (Id. at p. 146.) When Brown
attempted to flee, two officers pursued and cornered him in a parking lot where they
proceeded to use physical force to arrest him.5 (Ibid.) Brown suffered a fractured rib
and knots on his head. (Ibid.) During the criminal trial for resisting arrest among other
offenses, the trial court permitted the prosecution to present testimony from a Richmond
5 The officers' and Brown's accounts differed. According to the officers, when Brown refused to stop, they tackled him and took him to the ground, and one officer used his fist to hit Brown in the torso area, but when Brown continued to swing, another officer delivered a strike with his knee to Brown's torso and two strikes with his fist to the side of Brown's head. (People v. Brown, supra, 245 Cal.App.4th at p. 146.) According to Brown, after he had fallen from his bicycle and was face down on the ground, one officer dove on his back with enormous force, then unprovoked, slugged him in the head three times. (Id. at p. 147.) Brown denied swinging at either officer. (Ibid.) 12 Police Department (Department) sergeant, who testified about police officers' legal
authority to use reasonable force; the concept of "reasonable force" as defined by
the United States Supreme Court, and the " 'general gist' of what reasonable force
means . . . ." (Id. at p. 148.) The sergeant testified about the factors affecting an officer's
decision about what force to use, and the Department's employment of a " 'use of force
continuum' " to teach law officers how to respond to a suspect's level of resistance.
(Ibid.) The sergeant also outlined other important considerations for an officer facing
resistance; discussed the type of tools officers carried as well as their being taught to use
" 'personal weapons' " such as hands, forearms, elbows, knees and feet; and what tools
were appropriate for different levels of force. (Ibid.) Finally, addressing a hypothetical
situation in which a suspect used a closed fist to swing at an officer, the sergeant testified
as to how officers were trained for such a situation. (Id. at pp. 148-149.)
In addressing the defendant's claim of erroneous admission of the sergeant's
testimony on excessive force, the Brown court used as an "entry point" the leading
California case on the question in a civil context: Allgoewer v. City of Tracy (2012) 207
Cal.App.4th 755 (Allgoewer). (People v. Brown, supra, 245 Cal.App.4th at p. 158.)
Allgoewer involved two police officers responding to a complaint that the defendant had
violated a child custody order. (Allgoewer, at p. 758.) Upon arriving at the defendant's
home, the officers engaged him in a conversation in his yard. (Ibid.) When the officers
informed him of the child custody complaint, he became upset and picked up a hand rake
he had been using to garden. (Ibid.) After the defendant refused to put the rake down,
one of the officers performed a leg sweep, taking him to the ground, while the other
13 officer applied his Taser to the defendant twice. (Id. at pp. 758-759.) The defendant
suffered a broken wrist, torn rotator cuff muscles, and a torn bicep as a result of the
officers' use of force during his arrest. (Id. at p. 759.)
In the defendant's civil suit against the officers for using excessive force
(Allgoewer, supra, 207 Cal.App.4th at p. 759), the trial court entered a nonsuit in the
officers' favor on their argument that the defendant was required to present expert
testimony as to police practice and procedures so as to "establish an objective
reasonableness standard for the defendant officers' actions . . . ." (Ibid.) Because there
was no California precedent on the issue, the appellate court looked to out-of-state
authorities that confronted the admissibility of expert testimony on whether an officer's
particular amount of force was objectively unreasonable. (Allgoewer, at p. 763.)6
6 In Kopf v. Skyrm (4th Cir. 1993) 993 F.2d 374, the Fourth Circuit Court of Appeals reversed the trial court's exclusion of the plaintiff's two expert witnesses who would have testified as to police training and standards of conduct for the use of a police dog and the use of slapjacks. (Allgoewer, supra, 207 Cal.App.4th at p. 763.) The Fourth Circuit rejected a blanket rule that expert testimony is generally admissible in an excessive force case and instead held that because the standards and procedures of using police dogs and slapjacks would not be common knowledge to a lay juror, the plaintiff's experts should have been allowed to testify. (Ibid.) In Thompson v. City of Chicago (7th Cir. 2006) 472 F.3d 444, police officers fatally employed a choke hold to arrest a suspect following a high-speed car chase. (Allgoewer, at p. 763.) The Seventh Circuit Court of Appeals affirmed the district court's exclusion of the plaintiffs' expert testimony, finding the jury to be in " 'as good a position as the experts to judge whether the force used by the officers to subdue [the suspect] was objectively reasonably given the circumstances in this case.' " (Id. at 764.) In Robinson v. City of West Allis (Wis. 2000) 619 N.W.2d 692, the Wisconsin Supreme Court also rejected a categorical requirement for expert testimony " 'to determine whether a reasonable use of force in effectuating an arrest includes smashing an arrestee's face to the ground or landing a punch to the side of his head.' " (Allgoewer, at p. 765.) In part, Robinson reasoned that " 'determinations of excessive use of force are not, in general, beyond the realm of ordinary experience and 14 Adopting the analysis of the Wisconsin Supreme Court in Robinson v. City of West Allis,
supra, 619 N.W.2d 692, the Allgoewer court reversed the judgment of dismissal,
concluding the court had erred by concluding expert opinion was required: "[T]here is
nothing about the particular use of force in this case that was so far removed from the
comprehension of a lay jury as to necessitate expert opinion testimony on the applicable
standard of conduct or on what amount of force was reasonable under the circumstances
that confronted the officers who arrested [the defendant]." (Id. at pp. 765-766.)
The Brown court observed that the precise legal question in Allgoewer and
Robinson (whether expert testimony was mandatory versus whether it is admissible) was
based on a significantly different standard, but it nevertheless found those cases and
others instructive in that they "all view[ed] the utility of expert testimony in civil
excessive force cases through a common frame of reference." (People v. Brown, 245
Cal.App.4th at p. 163.) Brown explained: "Within that frame, the correct analysis is case
by case and very much dependent on the particular facts presented, but in general, where
only bodily force is used, the less likely it will be that an excessive force expert will add
something to the common store of knowledge that every jury brings to its task. Since the
ultimate issue for a jury to decide under Graham[, supra, 490 U.S. 386] is whether the
lay comprehension' " and " '[r]equiring an expert as a prerequisite to a finding of use of excessive force would essentially remove from the jury the task of applying standards of reasonableness and replace it with the task of evaluating the testimony of the parties' experts.' " (Allgoewer, at pp. 764, 765, quoting Robinson, at pp. 695, 699, 700.) The Robinson court explained that the facts of each case should dictate whether expert testimony was necessary, and " '[w]hile there may be cases in which the subtleties of police procedure and practice justifying a particular use of force are so far removed from the comprehension of a lay jury as to necessitate an expert, this is not one of them.' " (Allgoewer, at p. 765, quoting Robinson, at p. 700.) 15 challenged conduct is objectively reasonable, the training of particular officers—which
focuses subjectively on how they were predisposed to handle the situation they faced—is,
at best, only marginally relevant. What counts is whether a reasonable officer, faced with
the same set of circumstances, would have chosen the same course of action. . . . [E]ven
where an expert does not address the ultimate issue for decision by a jury, legal guidance
on what constitutes objectively reasonable conduct must come from the trial judge, not
from the expert." (Brown, 245 Cal.App.4th at pp. 163-164.)
The Brown court concluded that under the circumstances of its case, the sergeant's
testimony should have been excluded because it added nothing to the common fund of
information any juror would have brought to the jury room and inaccurately addressed
the governing law, and thus the expert "in essence, invited the jury to abdicate its duty to
decide the issue of excessive force based on an erroneous understanding of the law."
(People v. Brown, supra, 245 Cal.App.4th at pp. 164-165.) It held that specialized
knowledge was not required for the jury, because the officers "used 'force . . . reduced to
its most primitive form—the bare hands' " (id. at p. 165) and there was no need to explain
any use of a specialized law enforcement tool such as a gun, dog, Taser, Mace or pepper
spray. (Ibid.) Brown emphasized the importance that the jury apply a reasonableness
standard using its common knowledge under Graham's test, which was highly situational
and fact specific, requiring the jury to "apply its own independent sense of
reasonableness, using whatever community norms jury members might bring to the
issue." (Brown, at p. 166.)
16 Brown further observed that embedded in the sergeant's testimony was an
explanation of the governing law, and an improperly truncated explanation of Graham,
supra, 490 U.S. 386, in part because the sergeant never mentioned that the test was an
objective one. (People v. Brown, supra, 245 Cal.App.4th at p. 166.) Because the jury
instructions did not address Graham or give the jury criteria to use in distinguishing
"reasonable" from "excessive" force, the expert "supplied the jury's only legal guidance
on this crucial issue" (Brown, at p. 167) though he was not qualified to do so. (Id. at
p. 168.) The court stated it was for the prosecutor to request special jury instructions on
the Graham factors and elaborate on them in closing argument. (Ibid.)
Finally, Brown agreed with the defendant's position that the true purpose of the
sergeant's testimony was not to educate the jury about control techniques, but to suggest
that because the officers conducted themselves in accordance with legally sanctioned
training, their actions were within the bounds of the law. (People v. Brown, supra, 245
Cal.App.4th at p. 169.) "Reasonableness for Fourth Amendment purposes was for the
jury to decide based on the facts of Brown's encounter with [the officers], not by using
the officers' training as a proxy for it." (Id. at p. 170.) The court pointed out that in a
civil case, the scope of relevant subject matter for a claim of excessive force tends to be
broader, and that because the Fourth Amendment "focuses more narrowly on the moment
force is used than state tort law does [citation], . . . officer training and tactics can
potentially be relevant for purposes of tort liability, where it is not for Fourth Amendment
purposes." (Id. at pp. 170-171.) The Brown court adopted the Seventh Circuit's
conclusion that police rules, practices and regulations were " 'an unreliable gauge by
17 which to measure the objectivity and/or reasonableness of police conduct' under the
Fourth Amendment." (Id. at pp. 171-172.)
IV. Analysis
We are persuaded by People v. Brown's reasoning. That is, we reject the notion
that expert testimony is per se required on the reasonableness of an officer's use of
excessive force where a defendant seeks to prove the unlawfulness of the officer's
actions. (People v. Brown, supra, 245 Cal.App.4th at p. 163.) The court must determine
whether to exclude or admit expert testimony regarding this issue on a case-by-case basis,
dependent on the particular facts presented, and by analyzing what degree or type of
force was used. At one end of the spectrum, where an officer uses physical or bodily
force, expert testimony will less likely add something to the jury's common knowledge,
and the court may use its discretion to exclude the testimony accordingly. At the other
end of the spectrum, where an officer uses complex or sophisticated tools, procedures,
and training methods, expert testimony will more likely add something beyond the
common knowledge of the jury.
Here, the trial court did not abuse its discretion when it excluded Smith's proffered
testimony. In their attempts to restrain Howard, Deputy Roysdon used his body weight
and arms in a hug, Ferrante applied his knee to Howard's legs and used his hands to try to
control Howard's arms, and Deputy Sanchez likewise used his knee at the top of
Howard's shoulders. Under the circumstances, as in Brown, there was no need for Smith
to explain the "proper handling of some specialized law enforcement tool . . . ." (People
v. Brown, supra, 245 Cal.App.4th at p. 165.) As Brown stated: "Nor was it a matter of
18 specialized knowledge that two officers are more effective than one; that a second officer
may come to the aid of another officer who is having trouble subduing a suspect; or that,
to gain control over a resisting suspect, law enforcement officers are permitted to use
their hands, fists, knees, feet or other body parts. The question here was not whether two
officers could join in the pursuit of Brown or use bodily force against him, but whether
they went overboard when they caught him. On this crucial question of proportionality,
technical jargon ('pain compliance,' 'personal weapons,' 'control techniques') and truisms
about the amount of force officers may use (enough to ensure that their target cannot
engage them in 'a fair fight') add nothing to the everyday understanding anyone would
bring to the jury room." (Ibid.) In this case, as in Brown, the jury was to use its common
knowledge and "independent sense of reasonableness" under community norms in
assessing the reasonableness standard. (Id. at p. 166.)
Nor would it have been proper for Smith to testify about the deputies' legally
sanctioned training and whether Deputy Roysdon had complied with it, which would
have placed before the jury a "line of inquiry that was potentially distracting and
confusing." (Brown, supra, 245 Cal.App.4th at p. 165.) Again, reasonableness of the
deputies' conduct for Fourth Amendment purposes was for the jury to decide based on the
facts of Howard's encounter with Deputy Roysdon and the others, not by using their
training as a proxy for it (id. at pp. 170-171), and thus such training was irrelevant: " 'an
unreliable gauge by which to measure the objectivity and/or reasonableness of police
conduct' under the Fourth Amendment." (Id. at p. 172.)
19 Howard correctly notes that the applicable standard is that of objective
reasonableness, and he cites People v. Brown for its summary of the law relating to
admission of expert testimony. He also agrees that the reasonableness of the amount and
type of force was for the jury to determine. However, he urges us to disregard People v.
Brown on grounds the facts here are "significantly different" from those in that case.
We are unpersuaded. Howard states that his expert Smith would have given
"information on police procedures as to how to provide a suspect with notice that he or
she is being detained and/or arrested, as well as the appropriate use of force in making
such seizures." According to Howard, Smith was not intending to testify on his
subjective beliefs as to the use of force, use the officers' training as a proxy for
reasonableness, or give legal conclusions, as did the sergeant expert in Brown. Howard
maintains the jury's assessment of both reasonableness as to the officers' use of force, and
their notice of whether a detention or arrest was occurring, "would have been aided by
[Smith's] testimony . . . in police training and the reasons for requiring certain actions."
Howard argues, citing Tennessee v. Garner (1985) 471 U.S. 1, that established practices
and procedures are evidence by which the reasonableness of an officer's behavior may be
assessed.
We see little difference between Smith's proffered testimony as set forth in his
report, and that of the expert in People v. Brown, including Smith's conclusion that the
deputies' force was not "legally applied" in view of their training. Smith's discussion of
police procedures and training would have invited the jury to use those standards to
assess the deputies' subjective beliefs in the reasonableness of their use of force, rather
20 than apply an objective standard. As for Howard's claims about the need for Smith's
testimony concerning the nature of his detention, under the court's instructions
(CALCRIM No. 2652),7 the question for the jury was whether the deputies used
excessive force at the moment Howard resisted. (See Graham, supra, 490 U.S. at
pp. 396-397 [on claim of excessive force, the standard of reasonableness at the moment
applies].) Finally, as for Howard's latter point, Tennessee v. Garner is inapposite, as it
involved a civil rights claim (42 U.S.C. § 1983) in an entirely different scenario: an
officer's application of deadly force against a "young, slight, and unarmed" burglary
suspect (Tennessee v. Garner, supra, 471 U.S. at p. 21) by shooting him in the back of
the head while he was running away on foot. (Id. at p. 4; see Brosseau v. Haugen (2004)
543 U.S. 194, 203 ["Unlike most 'excessive force' cases in which the degree of
permissible force varies widely from case to case, the only issue in a 'deadly force' case is
whether the facts apparent to the officer justify a decision to kill a suspect in order to
prevent his escape"].)
Howard also asserts in his supplemental briefing that in People v. Brown, there
was no indication that a "prosecution witness had already testified to his views of the
legality of his actions." This repeats an argument Howard made in his opening brief: that
7 As read to the jury, CALCRIM No. 2652 provided in part: "The defendant is charged in count 1 with resisting an executive officer in the performance of that officer's duty in violation of Penal Code section 69. [¶] To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant unlawfully used force or violence to resist an executive officer; [¶] Two, when the defendant acted, the officer was performing his lawful duty; [¶] and three, when the defendant acted, he knew the executive officer was performing his duty." 21 Smith's testimony would have countered Deputy Roysdon's testimony that he intended to
detain Howard when he contacted him, as well as his purported explanation of standards
of reasonableness used in detentions, and Smith would have "added information as to
how law enforcement officers are trained in San Diego." Howard argues that to disallow
Smith's testimony on a basis "not deemed disqualifying when prosecution witnesses are
involved, amounts to unequal application of evidentiary rules in violation of [his] due
process rights . . . ." We observe that it was defense counsel who began this line of
questioning with Deputy Roysdon on cross-examination. In our view, any error
predicated on Deputy Roysdon's testimony in this respect was invited by Howard.
(People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3 ["The doctrine of invited error
applies to estop a party from asserting an error when 'his own conduct induces the
commission of error"].) But setting that aside, as we have pointed out, the jury's focus is
not the moment of initial stop or detention, but the reasonableness of the use of force
applied when Howard was resisting, after he had already fled from Deputy Roysdon.
As for Howard's claim that the trial court's ruling stripped him of his right to
present a defense, we observe that application of the ordinary rules of evidence " ' "do not
impermissibly infringe on the accused's [state or federal constitutional] right to present a
defense." ' " (People v. Linton (2013) 56 Cal.4th 1146, 1202; see also People v. Edwards
(2013) 57 Cal.4th 658, 728.) " ' "Courts retain . . . a traditional and intrinsic power to
exercise discretion to control the admission of evidence in the interests of orderly
procedure and the avoidance of prejudice." ' " (People v. Lawley (2002) 27 Cal.4th 102,
155.) Howard chose not to present witnesses in his defense at trial. He was not
22 precluded from attempting to demonstrate the officers' use of force was excessive and
their actions thereby unlawful, he was merely properly precluded from proving it with
expert testimony that was not probative on the question.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.