Filed 6/23/16 P. v. Howard CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    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.




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