Filed 3/23/16 Unmodified opinion attached
                               CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FIRST APPELLATE DISTRICT

                                            DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,                     A141172
                                                      (Contra Costa County
v.                                                    Super. Ct. No. 121946-8)
WILBERT BROWN,
                                                      ORDER MODIFYING OPINION
        Defendant and Appellant.                      AND DENYING REHEARING
                                                      [NO CHANGE IN JUDGMENT]




THE COURT:
It is ordered that the opinion filed herein on February 25, 2016, be modified as follows:
     1. On page 8, in the first full paragraph under the heading “Discussion,” in the
            sentence beginning, “He points out, for example,” the language, “it reasonably
            might have found that his punches were feckless, yet drew a severe and wholly
            unnecessary beating in response” is deleted. The deleted language is replaced
            with the following: “the jury could have found the officers unnecessarily
            initiated the violence by jumping on him and beating him as he lay prone on
            the ground, prepared to surrender.”

     2. On page 13, the first two sentences of the first full paragraph are deleted, along
            with the citation to People v. Curtis (1969) 70 Cal.2d 347, 355–356. The
            deleted material is replaced with the following paragraph:



                                                  1
          As we have posited, the jury could have, on the one hand, believed
   Brown’s testimony that he did not resist the officers before he fell or was
   pushed off his bike and was then tackled and slugged by Officer Moody
   while face-down on the ground, unresisting and ready to surrender—a
   scenario that would have made the arrest unlawful due to excessive force.
   The jury could still, on the other hand, have accepted the officers’
   testimony that Brown wheeled and repeatedly swung at them, striking both
   officers. If the jury concluded that Brown’s reaction was unreasonable, that
   would have supported an assault conviction. “[W]hen excessive force is
   used by a defendant in response to excessive force by a police officer . . .
   defendant [may] be convicted, and then the crime may only be a violation
   of section 245, subdivision (a) or of a lesser necessarily included offense
   within that section,” such as section 240. (People v. White (1980) 101
   Cal.App.3d 161, 168; accord, People v. Castain (1981) 122 Cal.App.3d
   138, 145 [“even if the officer is not acting within the scope of his duties
   because of his use of excessive force, the defendant may still be guilty of
   simple battery if he responds with excessive force”].) As Brown’s counsel
   argued in his opening brief, if the jury found that Brown used unreasonable
   force in swinging at the officers it would have supported a conviction for
   “simple assault rather than forcible resistance to lawful police conduct
   under section 69. That view of the facts—i.e., that there was improper or
   excessive use of force on both sides—was frankly the most plausible
   interpretation of the evidence.”

The next words following the insertion will be, “Thus, we conclude that the
trial court erred,” appearing in the original opinion at page 13. That sentence



                                  2
          shall end the paragraph and the following sentence, beginning with the words,
          “ ‘[T]he failure to instruct sua sponte” shall begin a new paragraph.

   3. On page 36, footnote 20: the sentence beginning, “Brown may have flailed
          reflexively at the officers,” is deleted, as are the last two sentences of the
          footnote, beginning with the words, “As Brown’s counsel argued in his
          opening brief,” and ending with the words, “most plausible interpretation of
          the evidence.”



There is no change in the judgment.
Respondent’s petition for rehearing is denied.




Dated: _________________                          _____________________________,
                                                                 P.J.




                                              3
Filed 2/25/16 Unmodified opinion
                               CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIRST APPELLATE DISTRICT

                                        DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,
                                                    A141172
v.
WILBERT BROWN,                                      (Contra Costa County
                                                    Super. Ct. No. 121946-8)
        Defendant and Appellant.


                                              I.
                                       INTRODUCTION
          In November 2011, Wilbert Brown was riding his bicycle on a sidewalk one
evening in Richmond when Officer Michael Ricchiuto ordered him to stop for wearing
earphones while riding, and for not having a light. Brown, who was 67 years old at the
time, attempted to flee, but Ricchiuto and a second officer, Officer James Moody, chased
him down and arrested him. After a physical altercation during the arrest, the officers
restrained Brown and found drugs in a baggie he had discarded during the chase.
Charges arising out of this incident resulted in felony convictions for possession and
transportation of cocaine and for using force or violence to resist an executive officer in
the performance of his duty in violation of Penal Code section 69 (section 69). Brown
appeals, seeking reversal of his conviction for violating section 69 on two grounds:
(1) the failure to instruct the jury sua sponte regarding simple assault as a lesser
necessarily included offense, and (2) the erroneous admission of expert testimony
regarding police standards for use of force. We agree with both contentions and shall
conditionally reverse, finding that these errors, considered individually and cumulatively,

                                              1
require either a modification or reversal of Brown’s conviction for resisting an officer by
force or violence.1
                                            II.
                 STATEMENT OF FACTS AND PROCEDURE
       A.     Brown’s Arrest on November 14, 2011: The Officers’ Version vs.
              Brown’s Version

       The initial series of events leading to Brown’s arrest was undisputed. Near dusk
on November 14, 2011, Officer Ricchiuto was on patrol in his cruiser in the Iron Triangle
area of Richmond, a neighborhood known for drug trafficking and gang activity, often
involving young African American men. He spotted Wilbert Brown, a 67-year-old
African American man, riding a bicycle on the sidewalk in violation of the Richmond
Municipal Code, while wearing headphones and without a light in violation of the
California Vehicle Code. Officer Ricchiuto yelled at Brown to stop, but Brown sped up
and tried to flee, with Officer Ricchiuto in pursuit. Another officer, Officer Moody, who
was backing up Ricchiuto in a second cruiser, joined in the chase and at one point
wedged his car in front of Brown’s path in an effort to cause a collision. Brown managed
to steer around Moody’s car, grazing it and breaking a side mirror as he passed. Both
officers eventually left their vehicles and pursued Brown on foot. The officers cornered
Brown in an abandoned parking lot, where they arrested him after a brief altercation. In
the course of that altercation, Brown sustained a fractured rib and knots on his head,
while Officer Ricchiuto sustained a “boxer’s fracture” to the knuckle of his right hand.
At the time of their encounter with Brown, both officers were several decades younger

       1
         Brown also seeks review of the denial of a pretrial motion for discovery of the
personnel records of the officers involved in the incident pursuant to Pitchess v. Superior
Court (1974) 11 Cal.3d 531 (Pitchess). Having reviewed the withheld personnel records,
we affirm the trial court’s denial of Brown’s Pitchess motion. On August 1, 2014, this
court filed an order indicating that we had reviewed the sealed record of the Pitchess
proceeding and found “that there are no discoverable documents under seal that should be
produced to counsel.” In his opening brief, appellant requests a second review be
conducted with the “benefit” of his factual summary and legal analysis. The disposition
we reach reaffirms our August 1, 2014 order.
                                             2
than Brown (Ricchiuto was in his “late 20s” and Moody was 38), and in excellent
physical condition. They were also physically much bigger than Brown (Brown was 5’
8”, 140 pounds, while the officers were 6’ 0’’, 175 and 200 pounds respectively).
       What happened in the parking lot when the officers caught Brown was a matter of
some dispute.
       According to the officers, at that point they had no idea how old Brown was. To
them, he was a man they had never seen before, who was wearing baggy clothes, and
who, by this stage of the chase, was suspected of felony drug trafficking. Officer Moody
caught up to Brown first, yelled at him repeatedly to stop, and then tackled him, throwing
him off of his bicycle, and taking him to the ground. Brown “aggressively” “flipp[ed]
back over” into a “sitting position”, and became combative, “swinging his hands” with a
“clenched fist.” To get control of Brown and protect himself, Officer Moody used his fist
to hit Brown in the torso area with a “compliance strike,” but the punch had no effect and
Brown continued to swing at him; at that point, Officer Ricchiuto came to Officer
Moody’s assistance, and, seeing Brown reach for something in his waistband, delivered
three “compliance strikes,” one with his knee to Brown’s torso, and two with his fists to
the side of Brown’s head. These blows caused Brown to stop swinging2 and shield his
head with his hands, a defensive move that finally brought him under control, since it
allowed the officers to secure his hands and place him in handcuffs. Brown’s account of
the officers’ actions was quite different. He testified that he fell off his bicycle in the
parking lot after hitting a curb. He claimed that, without any kind of warning, and while
he was face-down on the ground, not resisting and no longer fleeing, one of the officers
dived on his back with enormous force, “like Superman,” pinning him down. That
officer, angry and unprovoked, then proceeded to slug him in the head three times. In

       2
         Both officers were wearing bullet-proof vests. Officer Moody testified that
Brown never succeeded in hitting him. Officer Ricchiuto testified that Brown hit him
twice. Neither suffered injuries from what Officer Moody described as Brown’s
“flail[ing]” at them.


                                               3
Brown’s telling, all the second officer did was handcuff him after he had been pummeled
by the first officer. Brown denied swinging at either officer. He testified, “I wouldn’t
even try to—I couldn’t win anyway, but no, I didn’t.”
       B.     Expert Testimony
       The prosecution presented the testimony of three experts to support its case, the
first two to support the drug charges and the third to support the charge of resisting an
executive officer with force or violence. Criminalist Richard Bowden testified as an
expert in the area of analyzing controlled substances. Bowden was asked to examine a
packet of 10 knot-tied plastic bags containing an off-white chunky substance that had
been contained in the baggie Brown discarded. Bowden tested one of the bags and
concluded it contained .219 grams of cocaine base. Bowden offered the opinion that the
other packets, which contained substantially similar amounts of what appeared to be the
same substance, were also cocaine. The total estimated net weight of the substance in all
10 bags was 1.799 grams.
       Detective Miguel Castillo of the Richmond Police Department (RPD) testified as
an expert on the subject of possession of cocaine base for sale. Castillo opined that when
a person is carrying narcotics for sale rather than for personal use, he holds the drugs in
individual use packages in order to make speedy transactions, maximize profits, and
avoid carrying a scale. A “street-level dealer” also avoids having to use “pay/owe”
sheets by packaging narcotics in a single dose amount, which is approximately .2 grams.
When asked about a hypothetical suspect who was in possession of the amount and type
of substances that Ricchiuto found when chasing Brown, Castillo opined that the drugs
belonged to a street-level dealer who sells useable amounts of cocaine base.
       Under cross examination, Castillo testified that a single dose of rock cocaine has
an effect on the user for approximately 30 to 40 minutes and that the typical user may
partake of this drug several times a day. In Castillo’s experience, however, most users
buy only one dose at a time, get high from it, and then go back to their suppliers for more,
instead of simply buying several doses at one time. Castillo conceded that in the 15 cases


                                              4
in which he had testified as an expert regarding possession of cocaine for sale, the
amount of drugs in question was never as small as 1.7 grams.
       Another RPD officer, Sergeant Albert Walle, provided expert testimony on the
subject of police officer “defensive tactics.” The prosecutor began her examination of
Walle by asking about the legal authority of the police to use reasonable force. Walle
testified that Penal Code section 835 authorizes the police to “use reasonable force when
necessary when a public offense has been committed in order to effect an arrest, prevent
an escape or overcome resistance.” Walle also explained that the concept of “reasonable
force” is defined in a 1989 Supreme Court case called Graham v. Connor.3 When asked
for the “general gist” of what reasonable force means, Walle stated: “Whenever you’re
using force, try to look at the totality of the circumstances through the perspective of the
officer at the time who was using force, keeping in mind that the situation is fluid,
evolving, and there’s also various factors that come in that as well, too.”
       Walle testified that when officers have to use reasonable force their primary
objective is to subdue suspects by overcoming their resistance and detaining them safely.
The main factor affecting the officer’s decision about what force to use will be the
suspect’s “resistance level” because the officer is going to be responding to what the
suspect is doing. To teach officers how to respond appropriately, RPD employs a “use of
force continuum,” which consists of a ladder of escalation of resistance on one side
matched against a ladder of escalation of force by the officer on the other side. Officers
are taught not to look at an altercation as a “fair fight,” but to employ a higher level of
force than he or she faces: “You don’t want to bring a baton to a knife fight, so you also
want to be at least one level higher than what you’re . . . encountering.”
       Walle outlined other important considerations for an officer who faces resistance
from a suspect, which include the need to react and take control as quickly as possible to
avoid fatigue; the importance of gaining control of the suspect’s hands because of their
potential to injure the officer; and the need to be attuned to movements toward the waist

       3
           See Graham v. Connor (1989) 490 U.S. 386 (Graham).
                                              5
area because it is common to keep a weapon there. Walle testified that an officer does
not have “control” of a suspect until he or she stops resisting. The “tools” officers carry,
Walle testified, include a gun, handcuffs, pepper spray, a taser, baton, and a flashlight. In
addition, the officers are taught to use their “personal weapons,” which include hands,
forearms, elbows, knees and feet. Different tools are appropriate for different levels of
force. Using body parts or a baton is considered “lower level force,” while a taser is an
“intermediate” level, and a firearm is the highest level of force.
       The prosecutor asked Walle to address a hypothetical situation in which a suspect
was using a closed fist to swing at and attempt to punch an officer. Walle characterized
that hypothetical suspect as engaging in “assaultive” behavior. In that situation, officers
are trained to use either personal body weapons, a taser, baton or pepper spray. Officers
are also trained to provide assistance to an officer dealing with assaultive behavior
because it is usually easier to gain control when another officer assists, and gaining
control quickly is important for the safety of the officers as well as the suspect. Walle
testified that “[m]ost use-of-force incidences happen within a matter of seconds, and
they’re constantly evolving and they’re very dynamic, and an officer has to think on his
feet very fast, and oftentimes doesn’t have time—has to be very instinctive and a lot of it
is responsive to training.”
       C.     Jury Verdict and Sentence
       The jury was instructed on two felony drug charges: possession for sale of cocaine
base (Health & Saf. Code, § 13351.5); and transporting cocaine base (Health & Saf.
Code, § 11352). It also received instruction regarding possession of cocaine base (Health
& Saf. Code, § 11350), as a lesser offense of the possession for sale charge. The jury
also was instructed on the charge that Brown violated section 69, the offense which is the
subject of this appeal. Section 69, subdivision (a) states: “Every person who attempts,
by means of any threat or violence, to deter or prevent an executive officer from
performing any duty imposed upon the officer by law, or who knowingly resists, by the
use of force or violence, the officer, in the performance of his or her duty, is punishable
by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to
                                              6
subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both
such fine and imprisonment.”
       Section 69 can be violated in two separate ways. “ ‘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 (Smith).) In this case, the jury was
instructed about the second type of section 69 violation which requires the prosecution to
prove the defendant knowingly resisted the officer “ ‘by the use of force or violence,’ ”
and “that the officer was acting lawfully at the time of the offense.” (Id. at p. 241.) At
the request of both the prosecution and the defense, the jury was provided with the option
of convicting Brown of misdemeanor resisting an officer during the lawful performance
of his duties in violation of Penal Code section 148, subdivision (a) (section 148(a)), as a
lesser included offense of the section 69 felony charge. The theory of Brown’s defense to
the section 69 charge was that the officers did not act lawfully when they arrested him
because they used unreasonable and excessive force. The instructional guidance the jury
received on this issue was CALCRIM No. 2670, which provides that “A peace officer
may use reasonable force to arrest or detain someone, to prevent escape, to overcome
resistance, or in self-defense.”4




       4
         Neither party requested a special jury instruction giving the jury further guidance
as to what constitutes “reasonable force” under Graham. The CALCRIM No. 2670
instruction the jury received, however, did elaborate in another respect, providing
guidance as to the lawfulness of an arrestee’s conduct when confronted with
unreasonable or excessive force by an officer. “If a peace officer uses unreasonable or
excessive force while . . . arresting . . . a person, that person may lawfully use reasonable
force to defend himself or herself,” which is in turn defined as “that degree of force he or
she actually believes is reasonably necessary to protect himself or herself from the
officer’s use of unreasonable or excessive force” and “no more force than a reasonable
person in the same situation would believe is necessary for his or her protection.”
(CALCRIM No. 2670.) But the criteria by which to evaluate objective reasonableness—
whether from a reasonable officer’s perspective or from the arrestee’s—were, in this
case, left to the jury.
                                                 7
       On October 4, 2013, the jury returned its verdicts, finding Brown not guilty of
possession of cocaine base for sale, but guilty of the lesser included offense of possession
of cocaine base; guilty of transportation of cocaine base; and guilty of using force or
violence to resist an officer in the lawful performance of his duties in violation of section
69. Brown was sentenced in January 2014. The trial court granted a defense motion to
dismiss the transportation conviction based on intervening legislation limiting that
offense to transportation for sale. (See Health & Saf. Code, § 11352, subd. (c), added by
Stats. 2013, ch. 504, § 1 (AB 721).) The court denied a defense motion to reduce the
section 69 conviction to a misdemeanor, however, because Brown’s decision to flee
caused both property damage and personal injury (Brown’s bike “wiped out” the mirror
on the officer’s patrol car, and the officer injured his hand because of the contact with
Brown). After considering the relevant sentencing factors, the court placed Brown on
three years felony probation with a suspended 120-day jail term as a condition of
probation.
                                             III.
                                       DISCUSSION
       A.     The Instructional Error
              1.     Issue Presented
       Framing the case as a choice between two starkly different scenarios, one
recounted by the officers, or the other recounted by Brown, the Attorney General
contends the jury chose the first, resolving a simple credibility contest in favor of the
officers. That may be so, Brown responds, but by failing to instruct the jury on the lesser
included offense of simple assault, the court never gave the jury the option of finding that
both versions of the facts were partly true. He points out, for example, that even if the
jury believed he swung at the officers, it reasonably might have found that his punches
were feckless, yet drew a severe and wholly unnecessary beating in response. Without
commenting on which version of events here was the more persuasive, we conclude that
Brown’s assignment of instructional error has merit, that the jury should have been given
the option of finding him guilty of simple assault, and that he was prejudiced by the error.
                                              8
       As noted above, a violation of section 69 can occur in two circumstances. Under
that section, a defendant commits a violation by attempting to deter an officer’s lawful
duty by violence or threat of violence. Alternatively, section 69 is violated where a
defendant knowingly resists an officer’s execution of lawful duty by actually using force
or violence. (Smith, supra, 57 Cal.4th at p. 240.) Because the second ground for section
69 liability was the sole theory the prosecutor pursued at trial, the jurors were instructed
that they could convict for violation of section 69 only if they found actual use of force or
violence. At the request of both Brown and the prosecutor, the instructions gave the jury
the option of finding Brown guilty of misdemeanor resisting an officer during the lawful
performance of his duties as a lesser included offense of the section 69 charge. Under
this lesser charge, the jury could have convicted Brown had it found that Brown resisted
the officers’ lawful performance of their duties, even if he did not use force or violence to
effectuate that resistance. (See § 148(a).) Brown contends on appeal that the jury should
have been given an additional option—convicting him of misdemeanor simple assault as
a lesser included offense to a section 69 violation.
       An assault is “an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.” (Pen. Code, § 240 (section 240).) An “assault
does not require a specific intent to cause injury or a subjective awareness of the risk that
an injury might occur. Rather, assault only requires an intentional act and actual
knowledge of those facts sufficient to establish that the act by its nature will probably and
directly result in the application of physical force against another.” (People v. Williams
(2001) 26 Cal.4th 779, 790.) Brown asserts that a conviction for assault could have been
supported by trial evidence that he used force to resist the officers under circumstances
where the jury found the officers responded with excessive force, a factual scenario
falling somewhere between the officers’ version of events in the parking lot and that of
Brown.
       Brown concedes that he did not request an assault instruction, but he contends that
the trial court had a sua sponte duty to instruct on assault as a lesser included offense of
the section 69 charge. “ ‘California law has long provided that even absent a request, and
                                              9
over any party’s objection, a trial court must instruct a criminal jury on any lesser offense
“necessarily included” in the charged offense, if there is substantial evidence that only the
lesser crime was committed. This venerable instructional rule ensures that the jury may
consider all supportable crimes necessarily included within the charge itself, thus
encouraging the most accurate verdict permitted by the pleadings and the evidence.’
[Citation.] ‘[T]he rule prevents either party, whether by design or inadvertence, from
forcing an all-or-nothing choice between conviction of the stated offense on the one hand,
or complete acquittal on the other. Hence, the rule encourages a verdict, within the
charge chosen by the prosecution, that is neither “harsher [n]or more lenient than the
evidence merits.” [Citations.]’ [Citation.] Thus, ‘a trial court errs if it fails to instruct,
sua sponte, on all theories of a lesser included offense which find substantial support in
the evidence. On the other hand, the court is not obliged to instruct on theories that have
no such evidentiary support.’ ” (Smith, supra, 57 Cal.4th at pp. 239–240.)
       “ ‘ “We apply the independent or de novo standard of review to the failure by the
trial court to instruct on an assertedly lesser included offense. [Citation.]” ’ [Citation.]”
(People v. Campbell (2015) 233 Cal.App.4th 148, 158.)
              2.      Analysis
       “Under California law, a lesser offense is necessarily included in a greater offense
if either the statutory elements of the greater offense, or the facts actually alleged in the
accusatory pleading, include all the elements of the lesser offense, such that the greater
cannot be committed without also committing the lesser.” (People v. Birks (1998) 19
Cal.4th 108, 117–118 (Birks).)
       The question whether assault is a lesser necessarily included offense of section 69
is somewhat complicated by the fact that section 69 can be violated in two separate ways,
as we explained earlier. A person can commit this felony either by (1) attempting by
threats or violence to deter or prevent an officer from performing a duty imposed by law,
or (2) by knowingly resisting through the actual use of force or violence against an
officer in the performance of his or her duty. (Smith, supra, 57 Cal.4th at p. 240.) A
person can violate section 69 in the first way without necessarily attempting to apply
                                               10
physical force. (See In re Manuel G. (1997) 16 Cal.4th 805, 817 [defendant can commit
first type of offense prohibited by section 69 by threatening an officer in an attempt to
deter officer from future performance of a duty].) Under this formulation, a person can
violate section 69 without also violating section 240, which defines an assault as “an
unlawful attempt, coupled with a present ability, to commit a violent injury on the person
of another.” Therefore, as Brown concedes, section 240 is not a lesser included offense
of section 69 under the statutory elements test.
       Under the accusatory pleading test, however, we consider whether the facts
alleged in the accusatory pleading include all the statutory elements of an assault. (Birks,
supra, 19 Cal.4th at pp. 117–118.) Here, although the prosecutor’s trial theory was that
Brown committed the second type of section 69 violation, the first amended information
was not so limited. It alleged that Brown violated section 69 not just by attempting to
deter or prevent the officer from performing his duties (which can be accomplished
without force), but also by knowingly resisting the officers with force and violence.
Because the accusatory pleading used the conjunctive to charge Brown with both ways of
violating section 69, and it is not possible to violate the statute in the second way without
committing an assault, we conclude that assault was necessarily a lesser included offense
of section 69 under the accusatory pleading test. (See Smith, supra, 57 Cal.4th at
pp. 242–243 [§ 148(a) was necessarily a lesser offense of § 69 when accusatory pleading
charged the defendant with both ways of violating § 69].)
       The Attorney General concedes “[f]or purposes of this appeal . . . that section 240
was a necessarily included offense of section 69 as alleged in the amended information.”
But she nonetheless contends an assault instruction was not required in this case because
there was no evidence that Brown’s offense was less than the crime charged.
“[I]nstructions on lesser included offenses ‘are required whenever evidence that the
defendant is guilty only of the lesser offense is “substantial enough to merit
consideration” by the jury. [Citations.] “Substantial evidence” in this context is
“ ‘evidence from which a jury composed of reasonable [persons] could . . . conclude[]’ ”
that the lesser offense, but not the greater, was committed. [Citations.]’ [Citation.]
                                             11
Instructions on lesser included offenses should be given ‘when the evidence raises a
question as to whether all of the elements of the charged offense were present [citation],
but not when there is no evidence that the offense was less than that charged.’
[Citations.]” (People v. Campbell, supra, 233 Cal.App.4th at p. 162.)
       Specifically, the Attorney General contends there was no evidence from which the
jury could have concluded that Brown committed an assault without also violating
section 69. She reasons that the jury was faced with a choice of either (1) crediting the
prosecution evidence, which would establish that Brown forcibly resisted the officers and
that the officers used reasonable force, or (2) crediting Brown’s story, which would have
established that the officers used excessive force and Brown was “completely
unaggressive and defenseless.” This reading of the record misconstrues the function of
the jury in the truth seeking process. “ ‘Our courts are not gambling halls but forums for
the discovery of truth.’ [Citation.] Truth may lie neither with the defendant’s
protestations of innocence nor with the prosecution’s assertion that the defendant is guilty
of the offense charged, but at a point between these two extremes: the evidence may
show that the defendant is guilty of some intermediate offense included within, but lesser
than, the crime charged.” (People v. Barton (1995) 12 Cal.4th 186, 196.) Thus, the jury
was not required to choose and fully credit only one of the two versions of the November
2011 incident that were presented to it. For example, the jury could also have concluded
that Brown used force or violence to resist arrest but that the officers nonetheless
responded with unreasonable force. Under that scenario, Brown could have been found
not guilty of the section 69 violation, but still guilty of the lesser crime of assault.
       Alternatively, the Attorney General argues that the trial evidence established that
the officers used reasonable force as a matter of law. Reasoning that Sergeant Walle’s
testimony established that the officers were legally entitled to use a level of force that
was more than one level above the level of force used by the suspect, respondent
contends that there is no evidence “in the record that would support a finding that the
officers’ conduct was anything more than one level above that employed by [Brown] or
that it continued longer than necessary to gain control of [Brown].” The premise of this
                                               12
argument—that Sergeant Walle’s testimony was properly admitted—is incorrect for
reasons we explain below, but even had the testimony been narrowly enough framed and
appropriate for admission, the argument fundamentally misconceives the proper role of
expert testimony in a case of this nature. Such testimony can never be used to define, as
a matter of law, what constitutes objectively reasonable force or to decide whether it was
used in a given case.
       As we have posited, the trial evidence would substantially support a jury finding
that, although Brown attempted to use force to resist arrest, the officers overreacted with
excessive force and, therefore, were not acting within the scope of their duties. “[A]
resisting defendant commits a public offense; but if the arrest is ultimately determined
factually to be unlawful, the defendant can be validly convicted only of simple assault or
battery.” (People v. Curtis (1969) 70 Cal.2d 347, 355–356.) Thus, we conclude that the
trial court erred by failing to instruct the jury regarding assault as a lesser necessarily
included offense of the section 69 charge. “ ‘[T]he failure to instruct sua sponte on a
lesser included offense in a noncapital case is, at most, an error of California law alone,
and is thus subject only to state standards of reversibility.’ [Citation.] Under the state
standard, ‘such misdirection of the jury is not subject to reversal unless an examination of
the entire record establishes a reasonable probability that the error affected the outcome.’
[Citations.] ‘The Supreme Court has emphasized “that a ‘probability’ in this context does
not mean more likely than not, but merely a reasonable chance, more than an abstract
possibility. [Citations.]” [Citation.]’ ” (People v. Campbell, supra, 233 Cal.App.4th at
p. 165.) Under this test, we find a reasonable probability the error affected the outcome
of this case. The use of excessive force was a primary defense theory at trial and there
was substantial evidence to support it. But the instructional error precluded the jury
from finding that the officers used excessive force, while convicting Brown of assault for
swinging at the officers in a manner that could have injured them, whether he intended to
cause injury or not. A “jury without an option to convict a defendant of a lesser included
offense might be tempted to convict the defendant of an offense greater than that


                                              13
established by the evidence instead of rendering an acquittal.” (People v. Eid (2014) 59
Cal.4th 650, 658.)
       Furthermore, this jury showed a readiness to scrutinize the evidence, draw its own
independent conclusions of Brown’s level of culpability, and convict on lesser charges
than the prosecutor requested. The jury convicted Brown of a lesser included offense on
the drug charge, for example, which is an indication that it had doubts about the
prosecution’s case which might also have affected its resolution of the section 69 charge.
(See People v. Mullendore (2014) 230 Cal.App.4th 848, 857 [doubts leading jury to
convict defendant of lesser offense of one charge could have led to a similar result on
another charge for which it was not given that option].) Brown contends that the jury
convicted him of simple possession rather than possession for sale because it had doubts
about the credibility of the officers’ story that Brown threw the bag of cocaine rocks
under the parked car. Alternatively, that verdict may indicate that the jury drew different
conclusions from expert evidence about possession of cocaine for sale than the prosecutor
had intended. In any event, the jury could have had similar doubts about the section 69
charge. As discussed above, the defense argued that, even though Brown may have used
force to resist arrest, the officers overreacted and administered a beating that was
unreasonable and excessive. The instructional error precluded the jury from deciding
whether to credit the substantial evidence supporting this theory.
       The Attorney General’s only harmless error argument is that the instructional error
did not affect the outcome because “in convicting [Brown] of violating section 69 the
jury showed it rejected [Brown’s] claim of excessive force and found that the level of
force used by the officers was at all times reasonable.” But in assessing prejudice, “it
does not matter that the jury chose to convict the defendant of the greater offense over
acquittal or that the defendant was convicted of the greater offense on sufficient
evidence.” (People v. Racy (2007) 148 Cal.App.4th 1327, 1335–1336.) To hold
otherwise would undermine the very purpose of the sua sponte rule. (People v.
Breverman (1998) 19 Cal.4th 142, 178, fn. 25.) It does seem abundantly clear, however,
as the Attorney General points out, that the jury found that Brown swung his fists at one
                                             14
or more of the officers during the course of the arrest. Whether these blows (or attempted
blows) were effectual or not, we find substantial evidence to support an assault
conviction. “When a greater offense must be reversed, but a lesser included offense
could be affirmed, we give the prosecutor the option of retrying the greater offense, or
accepting a reduction to the lesser offense.” (People v. Kelly (1992) 1 Cal.4th 495, 528;
see People v. Hayes (2006) 142 Cal.App.4th 175, 184.) On remand we will provide the
prosecution with the option of retrying the section 69 charge along with a charge of
simple assault, subject to the guidance provided below in Part III.B.
       B.     Admission of Expert Testimony on Police Use of Force
              1.     Principles Governing Admission of Expert Testimony Generally
       We review the trial court’s ruling on the admissibility of expert testimony for
abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 773 (Sargon).) 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.’ ” (Ibid.) But the trial court’s discretion is not unlimited. “ ‘The scope of
discretion always resides in the particular law being applied, i.e., in the “legal principles
governing the subject of [the] action . . . .” Action that transgresses the confines of the
applicable principles of law is outside the scope of discretion and we call such action an
“abuse” of discretion. [Citation.] . . . [¶] The legal principles that govern the subject of
discretionary action vary greatly with context. [Citation.] They are derived from the
common law or statutes under which discretion is conferred.’ [Citation.] To determine if
a court abused its discretion, we must thus consider ‘the legal principles and policies that
should have guided the court’s actions.’ ” (Sargon, supra, 55 Cal.4th at p. 773.)
       The principles of law governing admission of expert testimony are well-settled.
“ ‘California law permits a person with “special knowledge, skill, experience, training, or
education” in a particular field to qualify as an expert witness . . . and to give testimony
in the form of an opinion.” (People v. Vang (2011) 52 Cal.4th 1038, 1044; Evid. Code,
§§ 720, 801.) “ ‘Generally, the opinion of an expert is admissible when it is “[r]elated to
a subject that is sufficiently beyond common experience that the opinion of an expert
                                              15
would assist the trier of fact . . . .” ’ ” (Allgoewer v. City of Tracy (2012) 207
Cal.App.4th 755, 761 (Allgoewer); see Evid. Code, § 801, subd. (a) [expert testimony
must be “[r]elated to a subject that is sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact”].) However, “ ‘ “[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.” ’ ” (Allgoewer,
supra,. at p. 762.) Expert 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.’ ” ’ ” (People v. Jones (2012) 54 Cal.4th 1,
60.)
          Some topics are categorically off-limits to expert testimony. (See Evid. Code,
§ 801, subd. (b) [caveat to admissibility where “expert is precluded by law from using
such matter as a basis for his opinion”], § 802 [expert may state basis for opinion “unless
he is precluded by law from using such reasons or matter as a basis for his opinion”].)
For example, juries are competent to decide such things as witness credibility (People v.
Wells (2004) 118 Cal.App.4th 179, 189), a defendant’s guilt or innocence (People v.
Torres (1995) 33 Cal.App.4th 37, 46), or whether a crime has been committed (id. at p
47), without expert assistance in all circumstances. Similarly, topics such as the
definition of a crime (id. at pp. 45–46), the meaning of a statute (id. at p. 46), or other
matters of law even if disguised as opinions about ultimate facts (Benavidez v. San Jose
Police Dept. (1999) 71 Cal.App.4th 853, 865), always lie beyond the proper role of an
expert.
                2.     Civil Cases Addressing Expert Testimony on Excessive Force
                       Issues

          The use of excessive force by law enforcement officers is analyzed under the
Fourth Amendment’s objective reasonableness requirement for a seizure of the person
(Graham, supra, 490 U.S. at pp. 388, 394–395; Brown v. Ransweiler (2009) 171
Cal.App.4th 516, 527 (Brown)), and usually arises in one of two contexts: (1)
                                              16
defensively, as here, when an accused seeks to defend against a charge of resisting arrest
or similar offense by contending the arrest was unlawful due to the officer’s use of
excessive force, and (2) offensively, when a person who claims to have been the victim
of excessive force by law enforcement sues for damages under 42 U.S. C. section 1983
(section 1983), or similar state law remedy. The specific question of admissibility of
expert testimony on use of force in the first of these situations has not been resolved in
California. Rather, the few cases shedding any light on this question, in California and
elsewhere, arise in the civil context, usually under section 1983. Because the rules of
evidence governing expert testimony in California, in other states, and in the federal
courts are broadly similar, at least insofar as is material here, it is worthwhile to preface
our analysis of this issue of first impression with a review of the pertinent civil precedent
decided by courts nationwide.
       Summing up the state of the law across the country, one commentator recently
observed that, although some courts allow excessive force expert testimony, “a larger
number of courts have held that it is not required or not admissible.” (Annot.,
Requirement for, and Admissibility of, Expert Testimony to Determine Whether Use of
Particular Amount of Force in Course of Making Arrest Was Unreasonable (2015) 95
A.L.R. 6th 641, 649; see id. at §§ 3–10 [collecting cases].) Illustrative of the majority
view, this commentator noted, is Allgoewer, supra, 207 Cal.App.4th 755, the leading
California case to address expert testimony on issues of excessive force. Though not
directly applicable here, Allgoewer serves as a helpful entry point to our analysis.
       In Allgoewer, two police officers visited the home of plaintiff Allgoewer to
investigate a complaint from Allgoewer’s former wife that he was keeping the couple’s
son in violation of a child custody order. (Allgoewer, supra, 207 Cal.App.4th at p. 758.)
Allgoewer became agitated while talking to the officers in his yard, and refused to drop a
hand rake that he had been using. (Ibid.) The officers forced him to the ground, tased
him twice, and wrenched his arms behind his back while arresting him, breaking his wrist
and tearing muscles in his shoulder and bicep. (Id. at pp. 758–759.) In Allgoewer’s civil
suit against the officers for excessive force, the defense argued that he was required to
                                              17
present expert testimony, drawing an analogy to medical malpractice cases. (Id. at
pp. 759, 762.) The trial court found the argument persuasive and granted a non-suit
motion. (Id. at p. 760.) Reversing, the appellate court began with a brief discussion of
Graham, supra, 490 U.S. 386, the leading United States Supreme Court excessive force
case involving non-deadly force. “Under Graham, . . . the question in a case such as this
is whether the amount of force the officers used in making the arrest was objectively
unreasonable given the circumstances they faced.”5 (Allgoewer, supra, 207 Cal.App.4th
at p. 763.) Finding no California precedent directly addressing “[w]hether expert
testimony is necessary to establish that a particular amount of force was objectively
unreasonable” (ibid.), the court canvassed pertinent out-of-state authority, focusing on
three cases, Kopf v. Skyrm (4th Cir. 1993) 993 F.2d 374 (Kopf), Thompson v. City of
Chicago (7th Cir. 2006) 472 F.3d 444 (Thompson), and Robinson v. City of West Allis
(Wis. 2000) 619 N.W.2d 692 (Robinson) (Allgoewer, supra, at pp. 763–764). From these
cases, the court distilled the following: “[E]xpert testimony can be admissible on the
issue of reasonable force” [Kopf], but is “not always admissible” [Thompson], and is


       5
         In assessing reasonableness, the Graham test calls for consideration of at least
three factors (which have come to be called the “Graham factors” in subsequent case law
and academic commentary): (1) the severity of the offense for which the suspect was
arrested, (2) the immediacy of the threat that the suspect posed to the officer or officers,
and (3) whether the suspect was fleeing or actively resisting. (Graham, supra, 490 U.S.
at p. 396.) “The most important of these is whether the suspect posed an immediate
threat to the officers or others, as measured objectively under the circumstances.”
(Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 712 (Mendoza).) Other
factors may be significant in a given case (Smith v. City of Hemet (9th Cir. 2005) 394
F.3d 689, 701), since the “proper application [of the Fourth Amendment’s reasonableness
test] requires careful attention to the facts and circumstances of each particular case . . . .”
(Graham, supra, 490 U.S. at p. 396.) Overall, however, the Court in Graham
emphasized that the test of “ ‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight,” for “[t]he calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving . . . .” (Graham, supra, 490
U.S. at pp. 396–397.)

                                              18
certainly not “required in an excessive force case” [Robinson]. (Allgoewer, supra, 207
Cal.App.4th at p. 764, italics in original.)
       Notably, the precise legal question addressed in Allgoewer—whether expert
testimony is required from the plaintiff in a civil excessive force case—turns on a
standard that differs significantly from the standard governing whether such testimony is
admissible. For expert testimony to be admissible, it is not necessary that the subject of
the testimony lie wholly beyond the understanding of the average juror, but merely that,
even if the average juror has some knowledge of the topic, the expert might improve
upon or refine the jury’s common fund of information.6 In cases where expert testimony
is required, by contrast, the witness must have a degree of specialized knowledge that is
peculiarly within the province of experts.7 Of the three out-of-state cases Allgoewer
mentions, only Robinson addressed the question of whether expert testimony is required.
Finding persuasive the Wisconsin Supreme Court’s observation in Robinson that “ ‘[w]e
cannot at once emphasize the jury’s responsibility for applying the standard of
reasonableness and also claim that the issue is beyond the jury’s comprehension,’ ”
Allgoewer rejected the argument that expert testimony is required in an excessive force
case. “ ‘Requiring an expert as a prerequisite to a finding of use of excessive force,’ ” the
court reasoned, “ ‘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, supra, 207 Cal.App.4th at p. 765.)


       6
        People v. Dejourney (2011) 192 Cal.App.4th 1091, 1110 (“Because admissibility
of expert opinion is a question of degree, and a jury need not be wholly ignorant of the
subject matter under the statutory rule, exclusion is only necessary where the opinion
would add nothing at all to the jury’s common fund of information.”).
       7
        Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702 (“If
the matter in issue is one within the knowledge of experts only and not within the
common knowledge of laymen, it is necessary for the plaintiff to introduce expert opinion
evidence in order to establish a prima facie case.”), italics in original; see Allgoewer,
supra, 207 Cal.App.4th at pages 761–762.

                                               19
       Allgoewer and Robinson both involved force that was primarily physical in nature
without the use of weapons or special law enforcement tools. The officers in Allgoewer
threw the arrestee to the ground and wrenched his arms behind his back (Allgoewer,
supra, 207 Cal.App.4th at pp. 758–759), and the officers in Robinson punched the
arrestee and slammed his face and body to the ground (Robinson, supra, 619 N.W.2d at
p. 696). Having rejected the notion that there is any per se rule requiring expert
testimony, the courts in both cases went further and determined there was no case-
specific “need” for expert testimony on the facts presented. As the Wisconsin Supreme
Court put it in Robinson, “there is no indication that the reasonableness of the officers’
actions involves matters so complex as to necessitate an expert. One need not be an
expert 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. . . .
The difficulty a jury will have with this case lies not in applying the reasonableness
standard to the facts as it finds them but in untangling the disputed facts presented by the
parties.” (Robinson, supra, 619 N.W.2d at pp. 700–701.) This secondary inquiry into
whether excessive force expertise was “needed” on the facts presented is roughly
analogous to whether proffered expert testimony will add anything to the knowledge of
the average juror, but because the root question in Allgoewer and Robinson—whether
expert testimony should be mandatory versus whether it should be admissible—differs
from the one presented here, Thompson and Kopf, the other two cases discussed in
Allgoewer, are more directly relevant to this case. Both Thompson and Kopf address
admissibility.
       In Thompson, two officers saw what they suspected was a drug buy take place
between the driver of a parked black Mustang and a man who approached him. They
tailed the Mustang for a few blocks and then tried to pull it over for a traffic stop. The
Mustang at first pulled over, but then suddenly sped up and tried to get away, leading the
officers and several others who joined them on a high-speed chase that ended with the
Mustang crashing. Eventually, seven officers arrived at the scene of the crash, where the
driver of the car, James Thompson, 6’ 2”, 330 pounds, got out of the car and began
                                             20
aggressively resisting their efforts to arrest him, swinging at them with his fists.
Thompson was tackled to the ground, and while on the ground face down, one officer,
Officer Hespe, sat on his back and placed him in a choke-hold, while the other officers
handcuffed him. The chokehold collapsed Thompson’s air passages, and he suffocated to
death. (Thompson, supra, 472 F.3d at pp. 447–448.) In the ensuing civil suit under
section 1983 against the officers, only Officer Hespe remained as an individual defendant
when the case went to trial, and the defense moved in limine prior to trial to exclude the
testimony of two experts proffered by the plaintiffs. According to the plaintiffs’ proffer,
the experts would have opined that Officer Hespe did not adhere to his training and used
a chokehold in violation of his department’s use-of-force policy. (Id. at pp. 449–450.)
       The trial court granted the motion in limine, and excluded the testimony.
Affirming that ruling on appeal, the Seventh Circuit Court of Appeals noted that, under
Graham, “What constitutes ‘reasonableness’ with regard to an officer’s actions in
apprehending a suspect under the Fourth Amendment is ‘ “not capable of precise
definition or mechanical application” but “requires careful attention to the facts and
circumstances of each particular case . . . .” ’ ” (Thompson, supra, 472 F.3d at p. 454
(quoting Graham, supra, 490 U.S. at p. 396).) The court then looked to Whren v. United
States (1996) 517 U.S. 806, 815–816, where the United States Supreme Court rejected
the use of police manuals and standard procedures to evaluate what a “reasonable officer”
would do under the Fourth Amendment in the context of a traffic stop. Summarizing
Whren, Thompson observed that “police rules, practices and regulations vary from place
to place and from time to time,” and as a result, “are an unreliable gauge by which to
measure the objectivity and/or reasonableness of police conduct” under the Fourth
Amendment. (Thompson, supra, at p. 455.) Accordingly, Thompson concluded,
“Introducing two experts to testify that Officer Hespe used excessive force would have
induced the jurors to substitute their own independent conclusions for that of the
experts.” (Id. at p. 458.)
       Kopf was another case involving the use of various forms of physical force, which
included the use of a trained police dog. In that case, a man and a woman, Anthony
                                              21
Casella and Tammy Obloy, were suspects in the robbery of a pizza parlor. A team of
police officers chased them, at first by car, and then, eventually, on foot, catching up to
them in an area behind a garage, where the suspects tried to hide in a narrow passageway
between two buildings. The officers released a police dog into the passageway, where it
mauled both Casella and Obloy, despite cries from Obloy not to let the dog attack her
because she was pregnant. The officers eventually dragged the suspects out of the
passageway, with the dog continuing to bite at Casella. They testified that, once Cassella
was freed from the passageway, he lunged at them. In response, an officer struck Casella
multiple times in the head with a flashlight until it broke, and then with a slapjack.
Casella suffered multiple lacerations from the dog bites and permanent brain injury from
the blows to his head. (Kopf, supra, 993 F.2d at pp. 375–376.) At the trial of a
subsequent section 1983 case brought by Cassella’s personal representative (he had since
died in an unrelated incident), the officers testified that in making the arrests they simply
followed their training. In rebuttal, the plaintiffs sought to offer the expert testimony of a
use-of-force expert who proposed to testify that the officers, in fact, violated
departmental use-of-force policy and did not follow their training. (Id. at pp. 376–377.)
       The trial court excluded the plaintiff’s expert, and on appeal a panel of the Fourth
Circuit Court of Appeals reversed. (Kopf, supra, 993 F.2d at p. 375.) The Court of
Appeals faulted the trial court for applying what appeared to be “a blanket rule that
expert testimony is generally inappropriate in excessive force cases . . . .” (Id. at p. 378.)
“The facts of every case will determine whether expert testimony w[ill] assist the jury.
Where force is reduced to its most primitive form—the bare hands—expert testimony
might not be helpful. Add handcuffs, a gun, a slapjack, mace, or some other tool, and the
jury may start to ask itself: what is mace? what is an officer’s training on using a gun?
how much damage can a slapjack do? Answering these questions may often be assisted
by expert testimony. [¶] A dog is a more specialized tool than a gun or slapjack. How to
train a poodle to sit or roll over is not everyday knowledge and could be explained by an
expert in a case where it was relevant. How to train and use a police dog are even more
obscure skills.” (Id. at p. 379.) Looking with close scrutiny at each type of force used,
                                              22
the court found it was an abuse of discretion not to allow expert testimony concerning the
officers’ training and use of police dogs and slapjacks because these tools involved
enough special knowledge to warrant expert explanation. (Ibid.)
       Hygh v. Jacobs (2d Cir. 1992) 961 F.2d 359 (Hygh), another civil excessive force
case involving physical blows to a suspect, is relevant here as well. There, in the course
of an arrest for disorderly conduct, Officer Jacobs slugged William Hygh in the face,
fracturing three cheek-bones. Jacobs claimed he hit Hygh with his fist in self defense.
(Id. at p. 361.) At trial in a section 1983 case seeking damages for excessive use of force,
Hygh presented a medical expert who opined, based on the extent of the injuries, that
Jacobs struck Hygh with “a blunt instrument of some sort.” (Ibid.) Since Jacobs
admitted he was carrying a flashlight that night, Hygh also presented a law enforcement
expert who testified that if Jacobs used the flashlight to strike Hygh rather than a fist, the
extent of force used was objectively unreasonable because the use of such a blunt
instrument met the legal definition of “deadly physical force.” (Id. at pp. 361–362.) On
appeal from a jury verdict in favor of plaintiff Hygh, the Second Circuit Court of Appeals
held that it was error to permit the expert to address legal matters, even though he did not
directly tell the jury how it should decide the case. “Even if a jury were not misled into
adopting outright a legal conclusion proffered by an expert witness,” the court held, “the
testimony would remain objectionable by communicating a legal standard—explicit or
implicit—to the jury. [Citations.] Whereas an expert may be uniquely qualified by
experience to assist the trier of fact, he is not qualified to compete with the judge in the
function of instructing the jury.” (Id. at p. 364). In the end, however, the appellate court
affirmed. After observing that the trial court had instructed the jury on the same matters
Hygh’s expert addressed, and that the difference between the expert’s version of law and
the trial court’s was “not substantial” (id. at p. 364), the appellate court found the law
enforcement expert’s testimony was erroneously admitted, but was not prejudicial,
although it did remark that the “question is close” (id. at pp. 364–365).
       While some of these cases are more directly applicable than others, each of them
is to some degree instructive. Broadly speaking, Allgoewer, Robinson, Thompson and
                                              23
Kopf all view the utility of expert testimony in civil excessive force cases through a
common frame of reference. 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 is whether the 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. Hygh adds the refinement that, even 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.
              3.     Analysis
                     a.      The Threshold Issue of Form
       The Attorney General acknowledged at oral argument that expert testimony from
the prosecution on the issue of excessive force is “unusual” on a section 69 charge. It is
indeed unusual, and was here, both for the substance offered and the way in which it was
presented. In the course of his testimony, Sergeant Walle opined at one point that, taking
the officers’ version of events as true, Brown had engaged in “assaultive” conduct,
justifying the force the officers used in response, but for the most part his testimony was
presented as a general overview of the applicable law and the “defensive tactics” course
that he teaches to all officers in the RPD. The purpose of this tutorial was never made
clear to the jury, but the prosecutor did explain to the court—though not to the jury—that
she was concerned jurors could “get the wrong impression” about the aggressive tactics
these officers employed to subdue a fleeing 67-year-old: “[W]hen there’s a struggle,
especially with more than one officer, juries can get the wrong impression that . . . they’re
ganging up on him,” and when “there’s a knee strike to the ribs . . . which then is


                                             24
followed by a punch, which is essentially a distraction blow, can seem [¶] . . . [¶]
excessive. But they are trained to use . . . these . . . tactics to get someone under control.”
           The Evidence Code presupposes the presentation of expert testimony in the form
of reasoned opinions.8 That has the salutary effect of ensuring some degree of logical
rigor, which not only allows the foundation for an expert’s opinion to be properly
screened for reliability (see Sargon, supra, 55 Cal.4th at p. 769 [“[u]nder California law,
trial courts have a substantial ‘gatekeeping’ responsibility” to screen expert testimony for
admissibility]), but once past that threshold screen, helps keep its presentation to the jury
focused on subject matter circumscribed by its rationale for admission.9 The form of


       8
          See Evidence Code section 801, subdivision (a) (“If a witness is testifying as an
expert, his testimony in the form of an opinion is limited to such an opinion” as is
“sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact”), italics added; Evidence Code section 801, subdivision (b) (expert
testimony must be based on matter “that is of a type that reasonably may be relied upon
by an expert in forming an opinion upon the subject to which his testimony relates”),
italics added; Evidence Code section 802 (“A witness testifying in the form of an opinion
may state on direct examination the reasons for his opinion and the matter . . . upon
which it is based, unless he is precluded by law from using such reasons or matter as a
basis for his opinion. The court in its discretion may require that a witness before
testifying in the form of an opinion be first examined concerning the matter upon which
his opinion is based.”), italics added.
       9
          A pair of federal cases, both from the Sixth Circuit Court of Appeals, illustrate
the importance of ensuring at the “gatekeeping” stage that proposed testimony from a
police practices expert is specifically focused on matters within the expert’s
qualifications. In Berry v. City of Detroit (6th Cir. 1994) 25 F.3d 1342 (Berry), the
plaintiff in a section 1983 excessive force case presented a retired police officer witness
with expertise in police “defensive tactics.” (Id. at p. 1349.) The trial court found the
witness qualified to testify as an expert, and on the strength of his testimony about what
he described as deficient use-of-force training and disciplinary practices, a jury awarded a
large damage verdict. (Id. at pp. 1343–1344, 1348–1349.) Reversing, the Sixth Circuit
Court of Appeals held the expert’s testimony should have been excluded as unreliable.
(Id. at pp. 1348–1354.) “[T]here is no such ‘field’ as ‘police policies and practices.’ . . .
[T]here was no foundation at all for discipline testimony, even though it would fall under
the general label of ‘police policies and practices[,]’ . . . [a phrase that] is so broad as to
be devoid of meaning. It is like declaring an attorney an expert in the ‘law.’ ” (Id, at
p. 1352.) More recently, the Sixth Circuit, in another section 1983 excessive force case,
                                              25
presentation here observed no such boundaries. Even assuming it was proper for the
prosecution to present Sergeant Walle’s testimony in the form we see here—no objection
having been interposed on that ground—the substance of the testimony should
nevertheless have been excluded. Because Sergeant Walle’s testimony (i) added nothing
to the common fund of information that any juror would have brought to the jury room,
and (ii) inaccurately addressed the governing law, he, in essence, invited the jury to
abdicate its duty to decide the issue of excessive force based on an erroneous
understanding of the law. Brown’s motion in limine seeking exclusion of the testimony
should therefore have been granted.
                     b.     Specialized Knowledge
       For the jury to sort out what happened here, specialized knowledge was not
required. Because these officers used “force . . . reduced to its most primitive form—the
bare hands” (Kopf, supra, 993 F.2d at p. 379), this was not a case in which the proper
handling of some specialized law enforcement tool (e.g. a gun, a dog, a taser, mace,
pepper spray) had to be explained. It may be to these officers’ credit that they chose to
use only physical force, but an expert was not required to make that elementary point.
Nor was it a matter of 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


distinguished Berry, explaining, “We did not hold that an individual cannot ever testify as
an expert about some aspect of police affairs. Rather, the holding in Berry reasoned that
unqualified individuals could not broadly testify about an area in which they possessed
no specialized knowledge.” (Champion v. Outlook Nashville, Inc. (6th Cir. 2004) 380
F.3d 893, 908 (Champion). Because the expert in Champion focused his testimony on a
“discrete area of police practices about which he had specialized knowledge,” (id. at
p. 909) the court found no abuse of discretion in the admission of the testimony of a
police practices expert. (Id. at pp. 908–909.)

                                             26
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.
       In a different criminal context but one also raising the issue of the admissibility of
expert testimony on matters for jury determination under a legal standard of objective
reasonableness, the court excluded testimony from an expert in People v Czahara (1988)
203 Cal.App.3d 1468 (Czahara). In that case, the defendant shot his ex-girlfriend and
her new boyfriend, and was then convicted of multiple attempted murder convictions.
(Id. at p. 1471.) Claiming that he reacted to provocation, the defendant called a
psychiatrist as an expert witness who, according to an offer of proof, would have testified
that “the ordinarily reasonable person in the same circumstances would also have acted in
passion.” (Id. at p. 1476.) This testimony, the defendant argued, was relevant to the
objective, reasonable person component of his heat of passion defense. (Id. at p. 1477.)
Affirming the trial court’s exclusion of the testimony, the appellate court ruled that “the
adequacy of provocation is not a subject sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact.” (Id. at p. 1478.)
       The Czahara court explained, “the reasonableness of [the defendant’s] reaction is
left to the jurors precisely so that they may bring their common experience and their own
values to bear on the question of whether the provocation partially excused the violence.
. . . While courts have frequently held certain categories of provocation adequate or
inadequate as a matter of law, the modern tendency is to leave the jury free to apply
community norms to the question. [Citation.] [¶] Psychologists, psychiatrists or
sociologists may have specialized empirical knowledge regarding the range of reactions
to a given provocation, . . . [b]ut this information would not materially assist the jury in
its task; the jury must determine not only if the reaction is ordinary but if it is reasonable
. . . .” (Czahara, supra, 203 Cal.App.3d at p. 1478.) The ultimate determination of
reasonableness, the court held, “depends more on (perhaps unarticulated) community
norms” than on any empirical knowledge the expert could have supplied. (Ibid.; see
                                              27
Burton v. Sanner (2012) 207 Cal.App.4th 12, 14 [expert “usurped the jury’s role” where
“[t]he test of reasonableness” on an issue of self defense was “an objective one for the
jury” and “it is just as competent as the expert to evaluate the evidence and draw
conclusions”].)
       Similarly, here, it was important for a jury to apply a reasonableness standard
using its common knowledge. Once the jury determined that some use of force was
appropriate in subduing Brown, its task was to determine whether these officers
overreacted to the circumstances. To guide that assessment, Graham lays down a broad
test highlighting certain factors for consideration, all to be viewed from the standpoint of
the officer in the field. (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334,
343.) At the end of the day, however, the “ ‘[t]he test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical application . . . .’ ”
(Graham, supra, 490 U.S. at p. 396, quoting Bell v. Wolfish (1979) 441 U.S. 520, 559.) It
is highly situational and fact-specific, and in applying the test, the jury’s task not only
permitted but required it to apply its own independent sense of reasonableness, using
whatever community norms jury members might bring to the issue.
                      c.     Expert Testimony on the Law
       “There are limits to expert testimony, not the least of which is the prohibition
against admission of an expert’s opinion on a question of law.” (Summers v. A.L. Gilbert
Co. (1999) 69 Cal.App.4th 1155, 1178.) Embedded in Sergeant Walle’s overview of his
mandatory “defensive tactics” training course was an explanation of the governing law.
At the start of Sergeant Walle’s examination, the prosecutor posed a series of direct
questions about the law, asking him “what does the law state is a reason for an officer to
use force?” and “[h]ow is reasonable force defined?” Sergeant Walle responded that the
legal authority for an officer’s use of force is “835(a) of the Penal Code” and explained
that all RPD officers are given training founded on Graham v. Connor.10

       10
         The Attorney General argues that Brown failed to preserve any specific
objection to Sergeant Walle’s testimony about the law. But this is not a case in which the
appeal raises “ ‘a wholly different basis of exclusion’ ” than the trial objections. (Cf.
                                              28
       Sergeant Walle then summarized his understanding of Graham for the jury, but
provided a truncated explanation, partially mentioning only one of the three factors the
Supreme Court held should be taken into account in assessing reasonableness—whether
the suspect is actively resisting or fleeing—never mentioning that the test is an objective
one, and repeatedly emphasizing “the law says you’re supposed to put yourself in the
shoe[s] of an officer at the time of the incident . . . because it is fluid and ever
changing[.]” The jury instructions in this case did not address Graham. As noted above,
the court instructed the jury using CALCRIM No. 2670, which advised it that “A peace
officer may use reasonable force to arrest or detain someone, to prevent escape, to
overcome resistance, or in self-defense,” but beyond that, it gave no instruction
explaining the criteria for the jury to use in distinguishing “reasonable” from “excessive”
force. Sergeant Walle supplied the jury’s only legal guidance on this crucial issue, and
the two “Graham factors” he omitted—the severity of the crime for which the suspect
was being sought, and the immediacy of the threat the suspect posed—were both
potentially important here.
       The Attorney General points out that Sergeant Walle discussed the law only
briefly, by way of background explanation. The testimony may have been brief, but it
was powerful. Clearly, the jury focused on it. Perhaps not surprisingly, since the jury
had no other source of legal guidance on this key legal issue—by contrast to Hygh, where
an expert merely echoed the trial court’s instructions—it asked for a read-back during
deliberations of the “testimony of [Sergeant] Walle regarding training of police officers,
specifically regarding compliance strikes and reasonable vs excessive force . . . i.e. need


People v. Williams (1988) 44 Cal.3d 883, 907, fn. 6.) Brown objected to Sergeant
Walle’s testimony in its entirety, and in support of that objection he argued that Sergeant
Walle’s testimony contained no specialized content and invaded the province of the jury.
Because the prejudicial impact of admission of Sergeant Walle’s testimony over these
objections—both of which were well taken—was bound up with his testimony on the
law, the grounds for objection asserted by Brown were sufficient to “fairly inform the
trial court . . . of the specific reason or reasons the objecting party believes the evidence
should be excluded.” (People v. Partida (2005) 37 Cal.4th 428, 435.)

                                               29
his entire testimony other than his introduction.” (Italics added.) Thus, even though
Sergeant Walle did not in terms advise the jury how to decide the ultimate issue, he did
manage to provide it with a legal standard for decision, thereby vesting himself with
authority as a source of legal knowledge. Summing up the problem with expert
testimony of this sort in Hygh, the Second Circuit Court of Appeals explained: “ ‘The
danger is that the jury may think that the ‘expert’ in the particular branch of the law
knows more than the judge—surely an inadmissible inference in our system of law.’ ”
(Hygh, supra, 961 F.2d at p. 364, quoting Marx & Co., Inc. v. Diners’ Club Inc. (2d Cir.
1977) 550 F.2d 505, 512.)
       As in Burton, supra, 207 Cal.App.4th 12, which also involved a police expert’s
testimony on use-of-force training (including such matters as “pain compliance” and the
“use-of-force continuum”), “the court essentially allowed [Sergeant Walle] to instruct the
jury on his view of applicable legal principles and standards, even though he is
unqualified to do so . . . .” (Id. at p. 23.) Like his counterpart in Burton, Sergeant Walle
“has impressive credentials as an educator and authority figure” with RPD. (Id. at p. 24.)
Indeed, in addition to training other officers on “defensive tactics,” proper use of “pain
compliance” techniques, and the like, Sergeant Walle was an investigator in the Internal
Affairs Unit and currently sits on RPD’s Use of Force Board, where he evaluates the
reasonableness of RPD officers’ actions on a day-to-day basis. In view of those
credentials, the jury had every reason to look to him as a far better judge than they could
be of the reasonableness of those officers’ tactics.
       The prosecutor was, of course, entitled to ensure the jury understood “there will
virtually always be a range of conduct that is reasonable” (Brown, supra, 171
Cal.App.4th at p. 537, italics in original), and that “ ‘ “[t]he Supreme Court’s definition
of reasonableness is . . . “comparatively generous to the police. . . .’ ” [Citation.]’ ” (Id.
at p. 528, quoting Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1103
(Munoz), disapproved on other grounds in Hayes v. County of San Diego (2013) 57
Cal.4th 622), but if she wished to emphasize these points, she was fully entitled to do so
by requesting a special jury instruction on the Graham factors and then elaborating on
                                              30
that instruction in closing argument.11 While counsel is expected to present argument
anchored in the law, fairly read, the fact that an expert does so, and does so based on an
inaccurate rendition of the law, is an indication he has improperly stepped outside his role
as adjunct to the fact finder. (See Burton, supra, 207 Cal.App.4th at p. 24 [reversing and
finding miscarriage of justice where an expert tried to do what an advocate could not and
improperly testified that “he turns down most court cases offered to him, and he only
takes a case if he ‘wholeheartedly and truly believe[s] in the case itself’ ”].)12
                      d.     Invasion of the Province of the Jury
       Emphasizing that Officer Walle did not opine on the ultimate issue of
reasonableness, the Attorney General points out that “it was still up to the jury to decide
whether the officers’ actions in this case conformed to their training” and that “[t]he
jury’s verdict suggests . . . it found that the officers’ use of force was consistent with their
training.” Her framing of the issue is telling. Putting to one side that the defense never
contested the officers were properly trained,13 this line of argument highlights why the

       11
          Munoz, supra, 120 Cal. App.4th at page 1110 (“The quotation directing the jury
that the test of reasonableness ‘is not one of 20/20 hindsight, but one which necessarily
allows for the fact that police officers are often forced to make split-second decisions in
circumstances that are tense, uncertain, and rapidly evolving with the amount of force
which is necessary’ was taken directly from case law [citation] and is a correct statement
of law. Although not appropriate as an instruction from the court, there was nothing
wrong with these statements as part of closing argument.”).
       12
          This illustrates how the open-ended form of much of Sergeant Walle’s
testimony created other problems. Sergeant Walle obviously was not and could never
have been qualified as an expert in the law. But because his testimony was not presented
in a way that ensured he would address only a “discrete area of police practices about
which he had specialized knowledge” (Champion, supra, 380 F.3d at p. 909; see fn. 9,
ante), he managed to roam beyond his demonstrated area of expertise by folding his
testimony on the law into his training course tutorial.
       13
          In closing argument, Brown’s contention was not that Officers Moody and
Ricchiuto were poorly trained or incompetent, but that they made a mistake when they
perceived him as a threat, that they overreacted to the situation and beat him up in
retaliation for his defiance, and that their testimony about him swinging at them was
fabricated to cover up their mistake.
                                                31
testimony should have been excluded, not why it should have been admitted. It concedes
the thrust of Brown’s argument for exclusion—that the true purpose of Sergeant Walle’s
testimony was not to educate the jury about control techniques they would otherwise
have had difficulty understanding, but instead to suggest that, because Officers Ricchiuto
and Moody conducted themselves “by the book,” in accordance with legally sanctioned
training, what they did was therefore within the bounds of the law. In effect, Brown
argues, Sergeant Walle’s testimony was an invitation to avoid the question of excessive
force altogether by conflating it with whether the officers did as they were trained to do.
He is correct, in our view.
       The Attorney General also contends that the training testimony could have cut
both ways, since “if the jury found that the officers’ actions were inconsistent with their
training it would tend to support the argument that the force used was unreasonable.”
But the idea that RPD’s training regimen can serve as a valid Fourth Amendment
benchmark for reasonableness—available for either side to argue—rests on the premise
that the officers’ training itself is reasonable. We have no reason to doubt that premise as
a matter of law enforcement policy, but by placing the issue before the jury, the court
opened up a line of inquiry that was potentially distracting and confusing.14 As Brown’s
counsel put the issue in support of his motion in limine, “Whether the officers are trained



       14
         Brown points out that in the wake of a series of high profile controversies
involving use of force by police officers in different parts of the country, a number of law
enforcement agencies have adopted reforms to their use-of-force training. (See Apuzzo,
Police Rethink Long Tradition on Using Force, N.Y. Times (May 5, 2015) p. A1; see also
Michelle E. McStravick, The Shocking Truth: Law Enforcement’s Use and Abuse of
Tasers and the Need for Reform (2011) 56 Vill. L. Rev. 363, 384–385 [pointing out that
the Federal Law Enforcement Training Center (FLETC), the national training institute
that developed the use-of-force continuum, has made clear that, because of the formulaic
nature of the continuum, it “directly conflicts with” Graham’s conception that
“ ‘reasonableness under the Fourth Amendment is not capable of precise definition or
mechanical application’ ”, and as a result, FLETC has “done away with the use-of-force
continuum” in its own training materials, although many law enforcement agencies
around the country still use some form of the continuum in their training programs.].)

                                             32
this way or not doesn’t necessarily make physical action reasonable.” Reasonableness
for Fourth Amendment purposes was for the jury to decide based on the facts of Brown’s
encounter with Officers Moody and Ricchiuto, not by using the officers’ training as a
proxy for it. Presented with the same line of argument the Attorney General makes here,
the Thompson court explained: “It may be that” adherence to local training rules might be
of interest to those “making discipline, promotion or salary decisions,” but “that
information was immaterial” in this trial. (Thompson, supra, 472 F.3d at p. 455.)
Because introducing an expert to address the issue of training “induced the jurors to
substitute their own independent conclusions for that of the expert[]” (Thompson, supra,
472 F.3d at p. 458), the court excluded testimony about officer training as more time
consumptive and confusing than probative under Federal Rule of Evidence 403 (the
federal counterpart to Evidence Code section 352) (id. at p. 453).
       The balance of probative value versus potential to confuse and distract illustrates a
key difference between this case and the civil cases addressing the admissibility of
testimony from a police training expert on excessive force issues. In general, the scope
of relevant subject matter implicating issues of excessive force tends to be broader in
civil cases than it is in criminal cases, and as a result, the probative value of testimony
from an excessive force expert is typically stronger there. In section 1983 cases, for
example, the contested issues may include an officer’s good faith as part of a qualified
immunity defense,15 agency liability based on alleged excessive use of force pursuant to
official policy,16 or supervisorial liability under a deliberate indifference theory.17 And in

       15
          Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 839–840 (recognizing
availability of qualified immunity defense to section 1983 claims asserted in the
California courts); see Mendoza, supra, 206 Cal.App.4th at page 711; Martinez v. County
of Los Angeles (1996) 47 Cal.App.4th 334, 342 (Martinez).
       16
          Blankenhorn v. City of Orange (9th Cir. 2007) 485 F.3d 463, 484 (Blankenhorn)
(“Blankenhorn seeks to hold the City liable for the arresting officers’ alleged use of
excessive force. The City may be held liable under section 1983 if its deliberate policy
caused the constitutional violation alleged.”); see Monell v. New York City Dept. of Social
Services (1978) 436 U.S. 658, 694 (agency liability under section 1983 where misconduct
of individual officers was undertaken pursuant to official policy).
                                             33
connection with state law tort claims, which frequently accompany section 1983 claims,
the scope of an officer’s duty to the suspect or others18 or the statutory defenses of
justification or immunity19 may also be at issue. Because the Fourth Amendment focuses
more narrowly on the moment force is used than state tort law does (Hayes v. County of
San Diego, supra, 57 Cal.4th at p. 638), placing less emphasis on matters preceding that
instant than tort law does, officer training and tactics can potentially be relevant for
purposes of tort liability, where it is not for Fourth Amendment purposes.
       Here, the perceptions of Officers Moody and Ricchiuto as to the circumstances
they faced on the evening of November 14, 2011 were certainly in issue—and of course
they testified at length about what they were seeing and thinking—but those perceptions
and the officers’ responses to the situation were to be evaluated in objective terms. While
RPD’s programmatic approach to training might have been relevant had Brown attacked
the credibility of these two officers with charges of rogue conduct in violation of RPD
rules or policy, the prosecution never argued that expert testimony was needed because
Brown opened the door to it. Nor was there any basis to do so. Brown’s defense, which

       17
          Blankenhorn, supra, 485 F.3d at page 485 (“Blankenhorn also seeks to hold
Chief Romero liable for Nguyen’s alleged use of excessive force in punching
Blankenhorn during the arrest. Chief Romero can be held liable in his individual
capacity ‘ “for his own culpable action or inaction in the training, supervision, or control
of his subordinates; for his acquiescence in the constitutional deprivation[;] or for
conduct that showed a reckless or callous indifference to the rights of others.” ’ ”); see
Canton v. Harris (1989) 489 U.S. 378 (respondeat superior liability under section 1983
where supervisor was deliberately indifferent to misconduct of individual officers under
him).
       18
         Calatayud v. State of California (1998) 18 Cal.4th 1057 (officers brandishing
shotguns while making an arrest owed no duty of care to fellow officer who was shot
when one of the shotguns accidentally discharged).
       19
           Martinez, supra, 47 Cal.App.4th at page 349 & footnote 8 (defenses of official
justification under Pen. Code, § 196 and official immunity under Gov. Code, § 820.2
apply to wrongful death claim in civil excessive force suit against officers for shooting
knife-wielding man who was high on PCP).



                                              34
focused on the “lawful performance” element of the section 69 charge, framed the
excessive force issue in purely Fourth Amendment terms. According to him, the
applicable rule of conduct was constitutional, not one found in a policy manual or in the
teachings of Sergeant Walle. As the court observed in Thompson, “police rules, practices
and regulations vary from place to place and from time to time,” and as a result, “are an
unreliable gauge by which to measure the objectivity and/or reasonableness of police
conduct” under the Fourth Amendment. (Thompson, supra, 472 F.3d at p. 455.)
                     e.      Prejudice
       The erroneous admission of Sergeant Walle’s testimony compounded the
prejudicial effect of the court’s failure to instruct on the lesser included offense of simple
assault. The nub of the matter is that the jury could have found that this 67-year-old’s
behavior in struggling against arrest and swinging at these two officers, if that is what he
did, was never a genuine threat to them. Had the jury undertaken a close examination of
the facts, as the reasonableness standard under Graham required it to do—without the
temptation to short-circuit its decisionmaking process by concluding that the officers
simply did as they were trained to do—Brown had a materially stronger case for a more
favorable outcome on the section 69 charge than he was able to muster with Sergeant
Walle’s testimony in the mix. Brown suggests that the distorting impact of Sergeant
Walle’s testimony so impaired the jury’s independence as to violate his constitutional
rights to a fair and impartial jury and to due process, justifying reversal under Chapman
v. California (1967) 386 U.S. 18, but we see no need for such strong medicine. It
suffices to say that, without the distraction of Sergeant Walle’s testimony, there was a
reasonable probability that he would have obtained a better result on the section 69
charge than he did. (People v. Watson (1956) 46 Cal.2d 818, 836.)
       The law provides a generous mantle of protection to law enforcement officers
accused of excessive force, but also contemplates that, where such questions are serious
enough to be tried, juries will have a vital role in deciding what constitutes objectively
reasonable force, bringing with them their independent sense of the values of the
community in which they sit. Because Sergeant Walle’s testimony failed to meet two
                                              35
fundamental requisites for expert testimony—that the expert must add something to the
common fund of knowledge the jury brings to its task, and that the expert must not usurp
the court’s role in giving the jury guidance on the law—the admission of his testimony
not only undercut the jury’s ability to perform this vital role, but prejudiced Brown’s
ability to mount a defense to the section 69 charge. 20
                                             IV.
                          CONCLUSION AND DISPOSITION
       The judgment is affirmed with the exception of Brown’s conviction for violating
section 69, which is conditionally reversed pursuant to the procedure outlined in People
v. Hayes, supra, 142 Cal.App.4th at page 184. If, after the filing of the remittitur in the
trial court, the prosecutor does not retry Brown on the charged offense within the time
limit of Penal Code section 1382, subdivision (a)(2), the trial court shall proceed as if the
remittitur constituted a modification of the judgment to reflect a conviction of the lesser
included offense of simple assault in violation of Penal Code section 240, and shall
resentence Brown accordingly.




       20
          Though the question is a close one, if the jury had been instructed on the lesser
included offense of simple assault and had returned a guilty verdict on that count, we
would not have reached the same conclusion as to the assault conviction. Because the
section 69 element of lawful performance of duty is not an element of assault, the
prejudice analysis would have been quite different. The issue of excessive force was
potentially relevant to assault, but in a different way than it was to the section 69 charge.
There is no evidence in the record to support a defense to assault that, in response to
unreasonable or excessive force by the officers, Brown used a “degree of force” that he
“actually believe[d]” was reasonably necessary to protect himself. (CALCRIM No.
2670.) Brown may have flailed reflexively at the officers, but he did not testify that he
was trying to defend himself. Thus, we conclude there is no reasonable likelihood of
outright acquittal for his conduct in the fracas leading to his arrest. As Brown’s counsel
argued in his opening brief, the scenario in which the jury found that Brown swung at the
officers would support a conviction for “simple assault rather than forcible resistance to
lawful police conduct under section 69. That view of the facts—i.e., that there was
improper or excessive use of force on both sides—was frankly the most plausible
interpretation of the evidence.”
                                               36
                                 _________________________
                                 Streeter, J.


I concur:


_________________________
Rivera, J.




A141172/People v. Brown




                            37
Concurring opinion of Ruvolo, P. J.


       I concur with the majority that the conviction for resisting an officer in the
performance of lawful duties (Pen. Code, § 69) must be reversed because the trial court
failed to instruct the jury on the lesser included offense of simple assault (Pen. Code,
§ 240), and there exists a reasonable probability that a different result would have
occurred had the jury been given the omitted instruction.
       Because this conviction must be reversed on this principal ground, there is no need
to discuss the issue of the alleged erroneous admission of expert testimony posited as an
alternative ground for reversal, let alone publish a discursive opinion on this legally and
factually complex subject. Indeed, Brown’s appellate counsel agreed at oral argument
that if the Penal Code section 69 conviction were to be reversed based on the failure to
instruct on the lesser offense of simple assault, there was no need to decide the alternative
evidentiary ground for reversal.




                                                  ___________________________________
                                                  RUVOLO, P. J.




A141172, People v. Brown
                                              1
People v. Brown (A141172)

Trial Court:                            Contra Costa County Superior Court


Trial Judge:                            Hon. Mary Ann O’Malley


Counsel for Defendant and Appellant:    Jonathan Soglin, Executive Director
                                        J. Bradley O’Connell, Assistant Director
                                        First District Appellate Project

Counsel for Plaintiff and Respondent:   Kamala D. Harris
                                        Attorney General of California

                                        Jeffrey M. Laurence
                                        Acting Senior Assistant Attorney General

                                        Gregg E. Zywicke
                                        Deputy Attorney General

                                        Bruce M. Slavin
                                        Deputy Attorney General




                                          2
