Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. NA082799, Richard R. Romero, Judge.
Kelly Cronin Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant Stephen E. Pla appeals from his convictions of transportation and possession for sale of methamphetamine, possession of a firearm by a felon, felony resisting an officer in performance of his duties and failing to register as a sex offender. He contends it was error for the trial court to: (1) partially deny his Pitchess motion; (2) fail to sua sponte instruct on the lesser included offense of misdemeanor resisting; and (3) fail to sua sponte instruct on the excessive force defense to the resisting charge. We affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
PROCEDURAL BACKGROUND
Defendant was charged with transportation of methamphetamine (count 1), possession for sale of methamphetamine (count 2) and using force to prevent Long Beach Police Officer Mark Gell from performing his duty (count 5), occurring on July 30, 2009. He was also charged with possession of methamphetamine for sale (count 3) and possession of a firearm by a felon (count 4) occurring on July 31, 2009. Finally, he was charged with failure to register as a sex offender (count 6). As to all counts, two prior conviction enhancements were alleged pursuant to Penal Code section 667.5, subdivision (b).
All future undesignated statutory references are to the Penal Code, unless otherwise stated.
A jury found defendant guilty on all counts. The trial court denied defendant’s motion for new trial based on the denial of his Pitchess motion. It found true the section 667.5, subdivision (b) prior conviction allegations and sentenced defendant to a total of eight years eight months in prison. Defendant timely appealed.
FACTS
A. Counts 1, 2 and 5
At about 7:00 p.m. on July 30, 2009, uniformed Long Beach Police Officers Mark Gell and Dylan Lobascio initiated a traffic stop of a silver Impala that was speeding on Ocean Blvd. While Lobascio approached the passenger side of the Impala, Gell approached the driver’s side. As Gell did so, he could smell marijuana coming from inside the car. The Impala’s tinted windows made it difficult for Gell to see into the car, but he was able to make out defendant in the driver’s seat and a woman in the front passenger seat. After initially ignoring Gell’s instruction to roll down the windows, defendant eventually rolled down the driver’s side window about half an inch to an inch but refused to open it any further; the smell of marijuana became stronger. When Gel asked for defendant’s driver’s license, defendant took the license out of his wallet and slammed it against the window. Meanwhile, through the window opening, Gell could see an orange pill bottle containing a leafy substance that appeared to be marijuana and a clear baggie containing residue on the center console. Upon observing these items, Gell ordered defendant out of the car. After briefly searching defendant, Gell directed him to sit on the curb, near where the female passenger was being detained by Lobascio. Responding to Gell’s inquiry whether there was anything illegal in the car, defendant said, “Yes, I have some weed in the center console.” After defendant admitted having marijuana in the car, Lobascio retrieved the orange pill bottle and the baggie. Gell then instructed defendant to get up and place his hands behind his head.
Before handcuffing defendant, Gell began to search him more thoroughly than he had prior to detaining him on the curb. Gell took everything out of defendant’s pockets and placed the items on the hood of the patrol car. As he was completing his search, Gell felt a plastic baggie in defendant’s shorts. Just as Gell did so, defendant removed his hands from behind his head, placed them on the patrol car and pushed himself backwards, thus pushing Gell away. This prevented Gell from completing the search. Concerned that defendant might be concealing a weapon, Gell instructed defendant to get on the ground. When defendant did not comply, Gell wrestled him to the ground. Gell could not handcuff defendant because defendant would not remove his arms from under his body. Officers Fritz and Chavez, who had arrived to assist Gell and Lobascio, helped Gell control defendant by each hitting one of defendant’s arms with a flashlight in order to force defendant to place his arms behind his back so that Gell could handcuff him.
Fritz’s description of the incident was consistent with that of Gell and Lobascio in all material respects.
After defendant was handcuffed, Gell completed his search. In defendant’s shorts, Gell found a baggie; inside that baggie were six smaller baggies, each of which contained a white crystal substance that appeared to be methamphetamine. In defendant’s wallet, Gell found one $100 bill, twenty-three $20 bills, one $10 bill, three $5 bills and three $1 bills. Searching the Impala, Lobascio recovered a maroon cell phone from the driver’s seat and a silver cell phone from the center console. No paraphernalia used to smoke marijuana or use methamphetamine was found on defendant’s or the female passenger’s persons, or in the car. However, the female passenger appeared to be under the influence of some narcotic. The baggies, orange pill bottle, cell phones, wallet and its contents were given to Officer Fritz, who booked them into evidence. A criminalist later determined that the baggie contained methamphetamine and that the orange pill bottle contained marijuana.
Meanwhile, during the hour-long booking process at the police station, Gell heard the maroon cell phone found on the driver’s seat ring numerous times. The home screen on that phone displayed the name, “Biggz, ” which was defendant’s nickname. When Gell answered it on one occasion, the caller said he needed “a 20.” Gell also observed text messages on that phone which seemed to pertain to the sale of narcotics. One message stated, in part, “Can you front me a dub until tomorrow?” Another stated, in part, “Can I get a Tee from you, and I’ll pay you Sunday on the first. Sam got ahold of my shit, and flushed it down the toilet. He walked in on me while I was trying to weigh a two out. Please, Bro. I get my money right on the first.”
Testifying as a narcotics expert, Long Beach Police Detective Christopher Bolt explained that “dub” is street vernacular meaning $20 worth of various narcotics, including methamphetamine or marijuana. A “20” is another street term for $20 worth of a drug. A dub of methamphetamine was equal to about 0.25 grams, but the price of methamphetamine has recently gone up. A “T” or a “teener” is street vernacular for one-sixteenth of an ounce, or 1.75 grams, of methamphetamine, which has a street value of between $120 and $180.
B. Counts 3 and 4
The next day, Long Beach Police Officer Jason Kirk executed a search warrant at Tracy Waggoner’s one bedroom apartment on East Sixth Street in Long Beach. Waggoner was present during the search and Kirk was assisted by Gell and Lobascio. Kirk found men’s clothing in large sizes in a suitcase next to a couch in the living room. Underneath the dining room table, Kirk noticed an unlocked safe inside of which he found a small baggie containing a white crystal substance that appeared to be methamphetamine; a plastic cylinder containing plant material that appeared to be marijuana; twenty-five $20 bills and one $2 bill; a towing receipt for the Impala defendant was driving when he was arrested the day before; paperwork for shots for defendant’s dog, “Little Biggz, ” with defendant’s name on it; a cell phone; and an operable but unloaded revolver. On the dining room table, Lobascio found a digital scale, a box of baggies and some mail addressed to Waggoner. Waggoner said the scale and baggies belonged to defendant. Waggoner told Kirk that defendant kept some clothes in a dresser drawer in the living room. Gell searched that dresser and in one drawer found men’s clothing in a large size that would appear to fit defendant. In that same drawer, Gell found two pieces of paper. One was a handwritten note which read, “Biggz, this is what I owe you, $120. Please leave me a teener on an envelope in my bed.” The other was a list of names with double and triple digit numbers next to each name, which Kirk identified as a “Pay/Owe Sheet.” The other drawers contained women’s clothing. Kirk booked all of the items found at Waggoner’s apartment into evidence.
Waggoner testified that in July 2009, she and defendant had been friends for several months. They did not live together, but defendant sometimes stayed at her apartment, sleeping on the couch in the living room. Defendant kept his clothes in a suitcase but may also have put some things in a dresser drawer in the dining room. Waggoner was usually present when defendant was at her apartment, but occasionally defendant was there only with Waggoner’s roommate or with other friends of Waggoner’s who were also staying at the apartment during this time. Waggoner had three safes in the apartment; she gave one safe and its key to defendant; she never saw him put anything in that safe. None of the items Kirk found in the safe belonged to Waggoner. Waggoner did not know who owned the scale Lobascio found on the dining room table, or how it came to be there; the sandwich bags found on the scale were probably hers. Waggoner did not recognize the papers found by Gell in the dresser drawer and she did not write the note asking for a “teener.” While the police were executing the search warrant at her apartment, she told them where defendant kept his things. She told them that the suitcase belonged to defendant, but not that the other things did.
A criminalist determined that the white crystal substance found in the safe was methamphetamine and that the plant material was marijuana. Given a hypothetical using the facts of this case, Detective Bolt stated that it was his opinion that the methamphetamine was possessed for sale.
C. Count 6
Defendant and the People stipulated that on November 6, 2002, defendant was convicted of an offense which required him to register as a sex offender. In July 2009, Kenneth Wagner worked in the sex registration unit of the Long Beach Police Department. He testified that transients are required to come in to the office approximately every 30 days. A transient who stays two to three nights a week at a particular location is required to provide that information on the registration form. On July 23, 2009, Wagner helped defendant complete a registration form. Defendant’s form does not indicate that defendant provided the information that he was spending several nights a week at Waggoner’s apartment.
D. Defense Case
Defendant testified that on July 30, 2009, he was driving with a female friend when he was pulled over by the police, ostensibly for speeding. At the time, defendant had marijuana in the car and methamphetamine on his person and he was under the influence of methamphetamine. The silver cell phone found in the car by police was his phone, the maroon one found on the driver’s seat did not belong to him. Defendant testified that he handed Gell his license and registration. When defendant did not immediately comply with Gell’s instruction to get out of the car, Gell opened the driver’s side door and pulled defendant out of the car by his shirt. After searching defendant, Gell directed him to sit on the curb. While defendant sat on the curb, Gell searched defendant’s car for between 45 minutes and an hour. After telling defendant that he found an empty baggie in the car, Gell tried to search defendant’s person a second time. Defendant explained that, as he spread his legs to be searched, he “felt what I had hid in between my legs kind of fall a little bit. So I tried to – tried to close my legs to stop it from falling out....” When defendant closed his legs, Gell pushed him down onto the ground. Gell and three or four other officers began beating defendant. Defendant kept his hands in a position to protect his face from the blows. Even after defendant was handcuffed, the officers continued hitting him. Defendant stayed on the ground because he was afraid that, if he got up, the officers would use that as an excuse to hit him some more. Eventually, five or six officers picked him up and put him in a wagon which transported him to the police station.
Defendant denied telling the officer who interviewed him at the police station that he had no idea how the marijuana or methamphetamines got there and that they may have been planted by the police while he was on the ground.
Defendant admitted he stayed at Waggoner’s apartment one or two times the first week of June 2009, six to eight nights during the last three weeks of June 2009, and once or twice during July 2009. He admitted that Waggoner gave him a safe in the apartment but claimed there was no key to the safe and he did not put any of his things into the safe because it was not secure. The gun, money and drugs found in the safe were not his. If paperwork for his dog, Little Biggz, was in the safe, it was because someone else put it there, possibly Waggoner, who took the dog to get its shots. Defendant denied keeping any clothes in a dresser drawer at Waggoner’s apartment.
DISCUSSION
A. Pitchess Motion
Defendant contends the trial court erred in denying his Pitchess motion to the extent it sought Gell’s and Kirk’s personnel records reflecting complaints that either officer used excessive force, and Gell’s personnel records reflecting dishonesty. He argues that counsel’s declaration submitted in support of the motion made the requisite showing of good cause and materiality to warrant this discovery as to both officers. We disagree.
Pitchess procedures, the sole and exclusive means by which citizen complaints against police officers may be obtained, are codified in Penal Code sections 832.7 and 838 and Evidence Code sections 1043 and 1045. (Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1539.) Evidence Code section 1043, subdivision (b) requires a Pitchess motion to include, among other things, an affidavit showing good cause for the discovery sought. (Brown, at p. 1539; see also Galindo v. Superior Court (2010) 50 Cal.4th 1, 12.) To show good cause, the defendant must “demonstrate[] both (1) a ‘specific factual scenario’ that establishes a ‘plausible factual foundation’ for the allegations of officer misconduct [citations], and (2) that the misconduct would (if credited) be material to the defense [citation].... [T]he materiality element requires the defendant to establish a logical link between the pending charge and the proposed defense, and to articulate how the requested discovery will support the proffered defense. [Citation.] Accordingly, defense counsel’s supporting declaration must propose a defense and articulate how the requested discovery may be admissible as direct or impeachment evidence in support of the proposed defense, or how the requested discovery may lead to such evidence. [Citation.] Thus, a defendant meets the materiality element by showing: (1) a logical connection between the charges and the proposed defense; (2) the requested discovery is factually specific and tailored to support the claim of officer misconduct; (3) the requested discovery supports the proposed defense or is likely to lead to information that will do so; and (4) the requested discovery is potentially admissible at trial.” (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 319; see also Garcia v. Superior Court (2007) 42 Cal.4th 63, 71 [depending on the circumstances, factual scenario may consist of a denial of the facts asserted in the police report; plausible scenario of officer misconduct is one that might or could have occurred, a scenario is plausible when it asserts specific misconduct that is both internally consistent and supports the proposed defense].) The threshold showing of good cause required to obtain Pitchess discovery is “relatively low.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83, 94; accord, Garcia, supra, at p. 70.)
We review Pitchess orders under the abuse of discretion standard (People v. Hughes (2002) 27 Cal.4th 287, 330). Any error in denying a Pitchess motion is subject to harmless error analysis. (See People v. Memro (1985) 38 Cal.3d 658, 684, disapproved on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) To establish prejudice, we “determine if there was a reasonable probability that the outcome of the case would have been different had the information been disclosed to the defense.” (People v. Hustead (1999) 74 Cal.App.4th 410, 422.) Denial of a Pitchess motion is harmless where “extensive evidence” links the defendant to the crime. (People v. Samuels (2005) 36 Cal.4th 96, 110.)
Here, defendant sought discovery of Gell’s personnel records relating to complaints against him for, among other things, use of excessive force and dishonesty (e.g., planting evidence, falsifying police reports, etc.) and Kirk’s personnel records relating to dishonesty. Counsel’s declaration in support of the motion alleged that Gell’s credibility was the “entirety of the case against the Defendant;” Gell “fabricated the alleged violations reported in the arrest report;” “falsified the statements allegedly made by the defendant in the report;” did not have any reasonable suspicion to initiate the traffic stop; and “excessive force was used in the arrest of defendant” by Gell, Fritz and Chavez. Regarding Kirk, counsel’s declaration stated that he “falsified his report.... Witness Tracy Waggoner indicates that she did not state that defendant stays with her two or three days of the week, for the past several months.”
Although the motion seeks only Gell’s personnel records, defense counsel’s declaration in support of the motion alleged that Gell and Kirk “fabricated the alleged violations reported in the arrest report...” and that “excessive force was used in the arrest of defendant by Officer Gell, as well as Officers Fritz and Chavez.” At the January 15, 2010 hearing on the motion, the trial court and counsel treated the motion as though it referred to Gell and Kirk.
The trial court granted the Pitchess motion as to Kirk and ordered an in camera review of his personnel records relating to complaints that he made false statements or filed false reports. The trial court explained that the allegation that Waggoner denied making the statement attributed to her in the police report established a factual scenario that would support a defense claim of officer misconduct. But the trial court denied the motion as to Gell’s personnel records, reasoning that the factual allegations of misconduct as to him were too conclusory.
To the extent defendant complains that the trial court erred in denying discovery of excessive force complaints against Kirk, he is wrong. Kirk executed the search warrant on July 31; he had nothing to do with defendant’s arrest the day before. Under these circumstances, defendant cannot show how complaints against Kirk for excessive force could be material to the defense theory that the contraband found at Waggoner’s apartment did not belong to defendant.
Even assuming, for the sake of argument, that it was error to deny Pitchess discovery as to Gell, defendant has failed to establish the requisite element of prejudice. This is because extensive evidence connected defendant to the charged offenses as to which Gell was a material witness. Defendant’s own testimony that he was in possession of methamphetamine when he was arrested by Gell supported the conviction on counts 1 and 2 (possession and transportation of methamphetamine). The conviction for resisting arrest (count 5) was supported by defendant’s own admission that he closed his legs to prevent Gell from completing a search of defendant’s person. Waggoner’s testimony that defendant stayed with her several days a week and that she gave him the safe in which Kirk found methamphetamine and a gun during the execution of a search warrant the next day supported the convictions on counts 3 and 4 (possession of methamphetamine for sale and possession of a firearm by a felon). In light of the extensive evidence that connected defendant to the charged offenses, there was no reasonable probability that the outcome of the case would have been different had complaints against Gell for excessive force and/or dishonesty been disclosed to the defense.
B. Instructions on Misdemeanor Resisting an Officer
Defendant contends the trial court erred in not instructing on misdemeanor resisting (§ 148), a lesser included offense of felony resisting (§ 69). He argues that a reasonable juror could have found that defendant acted unlawfully but did not use force to resist Gell in the performance of his duties. We disagree.
Section 148, subdivision (a)(1) defines misdemeanor resisting as willfully resisting, delaying or obstructing a peace officer in the discharge or attempted discharge of his or her duty. Felony resisting is defined in section 69, which provides: “Every person who attempts, 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 resists, by the use of force or violence, such officer, in the performance of his duty, is punishable....” The distinguishing factor is threat or violence, which is an element of the felony offense but not the misdemeanor.
In People v. Carrasco (2008) 163 Cal.App.4th 978, 985, we held that instruction on misdemeanor resisting was not required where “if appellant resisted the officers at all, he did so forcefully, thereby ensuring no reasonable jury could have concluded he violated section 148, subdivision (a)(1) but not section 69.” We explained that “[a]ppellant had to be physically taken to the ground... because he refused to comply with... repeated orders to remove his hand from his duffle bag. Appellant failed to comply with several officers’ repeated orders to relax and [one officer’s] orders to ‘stop resisting.’ He continued to struggle with [several officers]. [One officer] attempted to control appellant’s torso, while three other detectives attempted to control appellant’s arms. Appellant placed his hands and arms underneath his body, was ‘yelling, kicking, [and] cussing, ’ and said he would ‘kick [the officers’] ass[es].’ Appellant continued to squirm and refused to give his right hand to [the officer trying to handcuff him]. Appellant did not comply until after [an officer] administered pepper spray. There was no contrary evidence disputing the officer’s description of the struggle on the floor. Hence, the jury would have had no rational basis to conclude appellant wrestled with the officers, for which they convicted him of resisting or delaying an officer, but the struggle did not involve force or violence; accordingly, the trial court properly instructed the jury by not instructing it with section 148, subdivision (a) as a lesser included offense.” (Id. at pp. 985-986.) Here, based on defendant’s own testimony, there was no rational basis for the jury to conclude that defendant resisted arrest without the use of force.
In the present case, defendant’s own testimony established that he used force to resist arrest. Defendant testified that, although he initially complied with Gell’s command to spread his legs open to be searched, moments later he closed his legs to prevent Gell from finding what he had hidden between his legs. In other words, defendant physically prevented Gell from searching him incident to arrest.
That defendant used forced to resist Gell was also established by Gell’s and Fritz’s testimony. Gell testified defendant was about 6 feet 3 inches and weighed about 275 lbs; Gell was 5 feet 10 inches and weighed 175 lbs. As Gell was searching defendant prior to handcuffing him, defendant removed his hands from behind his head, placed them on the patrol car and thrust backwards to push Gell away from him just as Gell felt a suspicious object on the inside of defendant’s thigh. Concerned that defendant might be concealing a weapon, Gell tackled him to the ground. Defendant failed to comply with Gell’s orders to place his hands behind his back and stop resisting arrest. Eventually, Gell needed the assistance of two other officers to control defendant by forcing defendant to place his arms behind his back so that Gell could handcuff him and complete the search.
Fritz testified that he saw defendant “throw his arms” to get away from Gell. Fritz heard Gell commanding defendant to “[s]top fighting. Stop resisting.” When Fritz tried to pull defendant’s arm away from his body so that he could be handcuffed, defendant resisted. Even after the officers succeeded in handcuffing defendant, defendant refused to get up; several officers had to physically pick up defendant and put him into a van to be transported to the police station.
Based on this evidence, as in People v. Carrasco, the trial court had no duty to instruct on the lesser included offense because there was no rational basis to conclude that defendant resisted arrest but did so without the use of force.
C. Instructions on Excessive Force
Defendant contends the trial court erred by not sua sponte giving CALCRIM No. 2670, which explains the unreasonable use of force by a police officer as a defense to the charge of resisting arrest. He argues that “when he questioned why he had to get out of the car, Gell grabbed him by the shirt and pulled him out of the car. He also testified that after he moved his legs during a search, Gell tackled him to the ground and several officers started to beat him, and continued to do so after he was handcuffed. This testimony puts into question whether Officers Gell, Fritz, and Chavez used unreasonable and/or excessive force, placing them outside the lawful performance of their duties.” We find no error.
Even in the absence of a request, the trial court must normally “ ‘instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury’s understanding of the case.’ [Citation.] In addition, ‘a defendant has a right to an instruction that pinpoints the theory of the defense [citations]; however, a trial judge must only give those instructions which are supported by substantial evidence. [Citations.]... [Citation.] ‘A party is not entitled to an instruction on a theory for which there is no supporting evidence.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 715, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We independently review a claim of instructional error. (People v. Cole (2004) 33 Cal.4th 1158, 1210.)
An essential element of a violation of section 69 is that the officer must be engaged in the performance of his or her duties. (People v. White (1980) 101 Cal.App.3d 161, 167.) Resisting a lawful search can be a violation of section 69. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1154.)If the officer uses excessive force in the performance of what otherwise would be the performance of a lawful duty, a defendant cannot be convicted of resisting. (White, supra, at p. 167.) When excessive force by an officer is used as the excuse for the defendant’s resistance, the trial court has a sua sponte duty to explain the limitation of the defendant’s duty not to resist. (Id. at p. 164.) This limitation is explained in CALCRIM No. 2670. In White, the appellate courtreversed a conviction for misdemeanor resisting because the trial court failed to so instruct.
CALCRIM No. 2670 instructs that the jury must find the defendant not guilty if the People do not meet their burden of proving the arresting officer was lawfully performing his duties and that a police officer is not lawfully performing his duties if he uses unreasonable or excessive force to make an otherwise lawful arrest. The instruction explains: “A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense. [¶] If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer’s use of reasonable force.... [¶] If a peace officer uses unreasonable or excessive force while arresting or attempting to arrest a person, that person may lawfully use reasonable force to defend himself or herself. [¶] A person being arrested uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer’s use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection.”
Here, the trial court gave CALCRIM No. 2652, which reads: “The defendant is charged in count 5 with resisting an executive officer in the performance of that officer’s duty, in violation of... section 69. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant used force or violence to resist an executive officer; [¶] 2. When the defendant acted, the officer was performing his lawful duty; and [¶] 3. When the defendant acted, he knew the executive officer was performing his duty. [¶]... A peace officer is an executive officer. [¶] The duties of a peace officer include searching and arresting.” The Use Note to CALCRIM No. 2652 instructs that, when lawful performance is an issue, the trial court should also instruct: “A peace officer is not lawfully performing his or her duties if he or she is... using unreasonable or excessive force in his or her duties. Instruction 2670 explains... when force is unreasonable or excessive.” Defendant did not request, and the trial court did not give, either the last sentence of CALCRIM No. 2652 referring to excessive force or CALCRIM No. 2670. We find no error.
The prosecution theory was that defendant’s act of pushing Gell away while Gell was searching him was a violation of section 69. The theory of defense articulated during closing argument was that defendant should not be found guilty based on Gell’s testimony that defendant pushed back against him because defendant “did not testify that he pushed Officer Gell. And, additionally, Officer Lobascio testified and didn’t say that [defendant] pushed Officer Gell.” Thus, defendant’s defense was that he did not use force, not that he was defending against the excessive use of force by Gell. This is because there was simply no substantial evidence to support an excessive force theory of defense as it related to the prosecution’s theory of the case. By defendant’s own admission, Gell instructed defendant to stand with his legs apart and his hands behind his head so that Gell could search him. During the search, when Gell was about to discover what defendant had hidden between his legs, defendant closed his legs. After defendant closed his legs, Gell tackled him. Even in defendant’s version of events, Gell tackled defendant in response to defendant forcefully resisting Gell’s effort to search him by closing his legs while Gell had his hands on defendant. There was no evidence that Gell used any unlawful force against defendant prior to defendant closing his legs in an effort to prevent Gell from conducting the search. Under this state of the evidence, the trial court had no sua sponte duty to give CALCRIM No. 2670.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J., GRIMES, J.