Filed 6/18/19




                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                   F074841
        Plaintiff and Respondent,
                                                         (Super. Ct. No. 15CR-01076)
                  v.

TYSON PERRY,                                                     OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Merced County. David W.
Moranda, Judge.
        J. Courtney Shevelson and Alison Berry Wilkinson for Defendant and Appellant.
        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and David Andrew Eldridge,
Deputy Attorney General, for Plaintiff and Respondent.
        Larry D. Morse II, District Attorney, and Thomas Min, Deputy District Attorney,
for Merced County District Attorney as Amicus Curiae on behalf of Plaintiff and
Respondent.
                                         -ooOoo-
        Appellant Tyson Perry is a former police officer who used force against a private
citizen during an arrest. He challenges his conviction for unnecessarily assaulting or
beating another person while acting under color of authority. (Pen. Code, § 149.1) He
contends the jury instructions and prosecutor’s argument encouraged conviction under a
legally erroneous and factually unsupported theory. As we explain, we agree reversal is
required. We reverse the judgment and remand for further proceedings.
                                PROCEDURAL HISTORY
       Perry was charged with assault by a public officer (§ 149; count 1), battery with
serious bodily injury (§ 243, subd. (d); count 2), and misdemeanor battery (§ 242;
count 3). Count 3 was dismissed prior to trial on the ground the statute of limitations had
run.
       A jury found Perry guilty on count 1. On count two, the jury acquitted Perry of
battery with serious bodily injury but found him guilty of simple misdemeanor battery as
a lesser included offense. On the People’s motion, the court dismissed the misdemeanor
count for violation of the statute of limitations.
       Perry was given a suspended sentence and placed on probation for three years with
various conditions, including a 90-day commitment to county jail.
                               FACTUAL BACKGROUND
       This matter arises out of Perry’s intervention in a child custody dispute while he
was a police officer with the Livingston Police Department.
Child Custody Order
       Father and Mother2 were engaged in disputes over the custody of Daughter for
nearly their entire relationship. At the time of the incident at issue here, Daughter was
15 years old and Father and Mother were subject to a mediated custody order. The order
provided Father and Mother would split custody of Daughter on alternating weekends,


       1   Undesignated statutory references are to the Penal Code.
       To preserve the privacy of the victim, the victim’s daughter, and witnesses, their
       2
names have been anonymized or abbreviated. No disrespect is intended.


                                               2.
which began at 8:00 a.m. or the start of school on Friday. The weekend custody period
ended at 8:00 a.m. or the start of school on Monday. Mother was given custody from that
time until 8:00 a.m. or the start of school on Wednesday, at which time custody
transferred to Father until 8:00 a.m. or the start of school on Friday. School day
transitions were to be “directly to and from school.” All other transitions would take
place at the Livingston Police Department. The parties could mutually agree to changes;
absent such agreement, the custody order prevailed.
       The order directed Mother and Father to contact the local police or sheriff for
problems with enforcement of the order and stated, “Law enforcement personnel are
mandated to assist.” Failure to abide by the terms of the order was noted to be deemed a
violation of “Sections 166.4 (Contempt of Court), 273.6 (Violation of a Court Order), and
278.5 (Violation of Custody or Visitation Decree).”
       The order was signed by both Mother and Father.
Events Preceding the Dispute
       The weekend preceding the dispute was Father’s custody weekend. Over the
weekend, Daughter took a school trip to an amusement park. On Sunday, she and several
other students were caught shoplifting. Father was informed of the incident and was told
Daughter likely would be suspended from school. Father and Mother exchanged
numerous text messages regarding the situation well into the night. In one, Father told
Mother to be prepared to pick Daughter up at school the next day if she was suspended.
Daughter returned from the trip around midnight and Father and Daughter talked about
what had occurred until 1:00 or 1:30 a.m.
       The next morning, Father took Daughter to school. Daughter went to class and
Father went to the office. The vice principal called Daughter and Father into the office
and suspended Daughter from school for three days. Father was told to remove Daughter
from the school grounds. Mother did not come to the school while Father was there,
from 8:00 a.m. to 9:00 a.m.

                                             3.
       Father and Daughter went to Father’s car, where they sat together for a time. They
did not see Mother. Father took Daughter to breakfast but she then asked to go home.
Father did not immediately contact Mother. Father took Daughter to his house, where
they arrived between 9:00 and 10:00 a.m. Daughter went to her room and fell asleep.
       At 10:28 a.m., Father texted Mother to ask whether she wanted to switch custody
days to give him Monday to Wednesday so Mother could have Daughter from
Wednesday through the upcoming holiday weekend. Mother declined. At 11:14 a.m.,
Mother texted Father asking why he had not told Mother he picked up Daughter and
stating she was on her way to retrieve Daughter. Father told Mother Daughter was
sleeping and stated Mother could come when Daughter woke up. Father and Mother
exchanged a series of hostile text messages that concluded with Father telling Mother he
would text Mother to pick up Daughter when Daughter awoke.
Mother Seeks Police Intervention
       Mother went to the Livingston Police Department and spoke with Officer Michael
Baker, who was covering dispatch when she arrived. Mother asked for assistance
retrieving Daughter from Father. Officer Baker radioed Perry for assistance because
Perry was the officer taking calls for service at that time. Perry arrived and he and
Officer Baker reviewed the custody order and determined it was Mother’s custody time.
Mother showed the officers Father’s text messages, reported Father had refused to turn
over Daughter, and told them she was concerned for Daughter’s safety because Father
struck Daughter in the past. While at the police department, Mother twice tried to call
Father but he did not answer.
       Perry testified he believed his conversation with Mother and review of the custody
order and Mother and Father’s text messages provided “reasonable suspicion that there
was a potential violation of a custody order.” Perry and Officer Baker formulated a plan
for Perry and Mother to meet at Father’s residence for Perry to do a civil standby for



                                             4.
exchange of Daughter. Perry and Mother left the station while Officer Baker remained
behind on dispatch.
Arrest of Father
       Mother and Perry approached Father’s front door together. Mother knocked on
the door and Father responded. Father activated an audio recorder on his phone, which
recorded the ensuing verbal exchange. The recording was admitted into evidence and
played for the jury.3 Mother, Father, Perry, Officer Baker, and Father’s neighbor testified
at trial regarding what had occurred.
       A.     The Recording
       The recording captured the following exchange:

       “[FATHER]:           Oh, Man.

              (Sounds of door opening.)

                            Yeah?

       [MOTHER]:            Hi. We’re here to pick up [Daughter].

       [FATHER]:            She’s asleep. I’m not waking her up.

       MR. PERRY:           Hi. Can you grab your daughter?

       MALE SPEAKER: (Indiscernible.)

       [FATHER]:            No, I’m not going to (indiscernible). She’s asleep.

       MR. PERRY:           You’re in violation of a custody order.

       [FATHER]:            Let me see the custody order.

       MR. PERRY:          Stop. Take your hands out of your pockets. Don’t
       approach me in that fashion. Do not do that to me, sir. Okay? You may
       have problems with –

       [FATHER]:            You’re on my property, sir. Get off my property.

       3Two transcripts with slight variations were provided to the jury for reference.
The differences are immaterial. We quote from the People’s transcript.


                                            5.
       MR. PERRY:           No.

       [FATHER]:            Get off my property now.

       MR. PERRY:           Do you really want to go there?

       [FATHER]:            Yes. Get off my property now.

       MR. PERRY:           It’s not going to happen. I’m not leaving the property.

       [FATHER]:            Get off my property.

       MR. PERRY:           You’re in violation.

       [FATHER]:            Let me see the custody order. Let me see it.

       MR. PERRY:           Get your finger out of my face.

       [FATHER]:            Get your finger out of my face.

       MR. PERRY:           Turn around.

       [FATHER]:            Let me see the custody order.

       MR. PERRY:           Hey, when you can, 98.[4]

       [FATHER]:            Let me see the custody order you are referring to.

       MR. PERRY:           Turn around.

       [FATHER]:            No. Why should I turn around? Let me see the
       custody order.

       MR. PERRY:           Yeah, affirming extremely 13 16.[5]

       [FATHER]:            Let me see the custody order. Where is it? I’m asking
       you a question.

       [MOTHER]:            Wait, is it not my day today?

       4Perry and Officer Baker explained the code “1198” is a request for “cover” or for
another officer to meet at the requesting officer’s location.
       5Although the transcript states, “affirming extremely 1316,” Perry and Officer
Baker testified Perry actually stated “1369,” which is code for “that person is being an
asshole.”


                                            6.
[FATHER]:          Where is the custody order?

[MOTHER]:          It’s not my day today?

[FATHER]:          Well, let me see your custody order.

[MOTHER]:          I have one custody order there, and then they have the
other one.

[FATHER]:          Go get it. Go get it. I want to see it. Go get it.

[MOTHER]:          What for? It’s not my day today?

MR. PERRY:         You know what’s in it – you know what’s in it, big
guy.

[MOTHER]:          Tell me if it’s not my day today.

[FATHER]:          Go get the custody order.

MR. PERRY:         You know what’s in it. Nah, it’s not going to happen.

[FATHER]:          Why not?

MR. PERRY:         Because.

[FATHER]:          Then get off my property.

MR. PERRY:         Nope.

[FATHER]:          Get off my property.

MR. PERRY:         Nope.

[FATHER]:          Are you going to violate my property rights right now?

MR. PERRY:         What property rights?

[FATHER]:          My property rights.

MR. PERRY:         Get your hands out of your pockets.

[FATHER]:          This is my property. I’m asking you a question. Get
off my property.

MR. PERRY:         No.



                                    7.
[FATHER]:           Why not?

MR. PERRY:          Because I said so.

[FATHER]:            Where’s your right to be on my property right now?
Where’s your right? Where’s your right? I’m asking you a question. Are
you not listening to me?

MR. PERRY:          No, I’m not.

[FATHER]:           Okay. So where is the custody order?

MR. PERRY:          One of two things are going to happen. Okay?

[FATHER]:           You’re going to get off my property or you’re going –

MR. PERRY:           You’re either going to comply and wake up your
daughter – to give her to the lawful guardian –

[FATHER]:           Oh, no. You might have already woken her up. You
might have already woken her up actually with all your screaming.

MR. PERRY:          – or I’m going to put you in handcuffs, put you in the
back of my car and then I’m going to –

[FATHER]:            You can do whatever you think is necessary, but
you’re not going to violate my rights.

MR. PERRY:          Okay.

[FATHER]:           Right? Are you going to violate my rights?

MR. PERRY:          Oh, I would never violate your rights.

[FATHER]:           Then get off my property unless you show me some
cause.

MR. PERRY:          Not going to happen.

[FATHER]:           Where is the custody order? I’m asking you a
question.

MR. PERRY:          Okay. I already told you.

[FATHER]:           Why don’t you go stand over there with her –

MR. PERRY:          Okay.

                                     8.
[FATHER]:          – off my property until you have a right.

MR. PERRY:         Okay.

[FATHER]:          Okay. Then go do that. Get off my property.

MR. PERRY:         No. Nope.

[FATHER]:          Why not?

MR. PERRY:         Because.

[FATHER]:          Because what? I’m asking you a question, Mr. Perry.
Why don’t you get off my property?

MR. PERRY:         Sergeant Perry.

[FATHER]:          Sergeant Perry, why don’t you get off my property?
Why don’t you get off my property? I’m asking you a question.

MR. PERRY:         It’s not going to happen.

[FATHER]:          Why not?

MR. PERRY:         Because.

[FATHER]:          Where is your custody order?

MR. PERRY:         Turn around.

[FATHER]:          Why? You’re on my property. What have I done?

MR. PERRY:         Turn around. Turn around.

[FATHER]:          I don’t want to turn around.

MR. PERRY:         Turn around or I’m going to make you turn around.

[FATHER]:          Why are you going to make me turn around?

MR. PERRY:           You don’t want to comply. You said you’re not going
to give up the daughter.

[FATHER]:          I want to see –

MR. PERRY:         You’re in violation of a custody order.



                                     9.
      [FATHER]:          No, I’m not – where is my custody? Where is my
      custody order? Where is the custody order? Where is it at? I don’t have a
      custody order. Where is it at?

      MR. PERRY:            See, I told you this would happen one of two ways.

             (Sounds.[6])

      [FATHER]:             Now you want to hurt me?

      MR. PERRY:            Spread your feet.

      [FATHER]:             You want to push me that hard?

      MR. PERRY:            Spread your feet.

      [FATHER]:           You want to push that hard? Where is the custody
      order? She doesn’t have a custody order. You’re violating my rights right
      now.

      MR. PERRY:            I told you. (sound)

      [FATHER]:           You’re on my property. (sound) On my property and
      you’re being loud and you are waking up my kid.

      MR. PERRY:            Okay. (sound)

      [FATHER]: (to [Mother]): Is this what you did last time when I went to
      pick her up and she was asleep? Is that what you did, [Mother]?

      MR. PERRY:            Stop. Stop. Nobody told you to move.

      [FATHER]:             Why you fucking squeezing that?

      MR. PERRY:            Stop.

      [FATHER]:             Why are you fucking squeezing that?

      MR. PERRY:            Stop. Stop.

      [FATHER]:             I’m asking you a question.

      MR. PERRY:            No one told you to move.

      6 Father contended the sounds heard on the recording were the sounds of the
handcuffs ratcheting tighter.


                                            10.
[FATHER]:          You fucking bully. Why are you –

MR. PERRY:         Stop.

[FATHER]:           Why’d you do that? Why are you doing that? I’m
asking you a question.

MR. PERRY:         Because you won’t stop moving. (sound)

[FATHER]:          Are you watching this, Mr. Baker? Are you watching
this?

OFFICER BAKER: Sir, please stop.

[FATHER]:          Are you watching this, dude?

OFFICER BAKER: Sir, just stop.

[FATHER]:          Are you watching him be a fucking dick –

OFFICER BAKER: Please stop.

[FATHER]:          – squeezing this?

OFFICER BAKER: Please stop.

[FATHER]:          What am I doing? I’m not even moving. (sound)

MR. PERRY:         See, there you go, moving your hands.

      (Overlapping speakers indecipherable.)

MR. PERRY:         Now you’re moving your feet, dude. Come on.

OFFICER BAKER: You’re being difficult. Stand still. Just stand still and
look straight ahead.

MR. PERRY:         God.

OFFICER BAKER: Just don’t be difficult.

MR. PERRY:         You know how this works. (sound)

[FATHER]:          Are you going to squeeze it a little harder?

MR. PERRY:         – If I need to –



                                      11.
[FATHER]:           – going to squeeze it a little harder?

MR. PERRY:          – yes.

[FATHER]:           Yeah? How hard are you going to squeeze this?

MR. PERRY:          God.

[FATHER]:           How hard are you going to fucking squeeze this?

      (sounds.)

[FATHER]:          Come on. How hard are you going to squeeze it?
(sound) Are you going to hit my head on the ground now?

[MALE SPEAKER]: Roll over.

MR. PERRY:          Roll over on your stomach.

OFFICER BAKER: Roll over.

      (sounds.)

[FATHER]:           You just crushed my glasses.

OFFICER BAKER: You got that double-locked yet?

MR. PERRY:          No.

[FATHER]:           You’re going fucking kill me, dude. I haven’t done
nothing wrong. I just don’t want to wake up my daughter.

[MOTHER]: Is this door open?

      (Indiscernible.)

[FATHER]:           Don’t go in my house. You’re not allowed to go in my
house.

[MOTHER]:           I just want to make sure the door is open to get
[Daughter] out.

[FATHER]:           Oh, you want her to see this? I don't know what else
I’m going to do because I didn’t do nothing wrong.

OFFICER BAKER: You search him yet?



                                    12.
       MR. PERRY:           No.

       [FATHER]:            I don’t have anything.

       MR. PERRY:           Lay on your stomach.

       [FATHER]:            I am on my stomach.

       MR. PERRY:           No, you’re not.”

       B.     Father’s Testimony
       Father testified that Perry told him to turn around, and Father then saw Officer
Baker approaching. As Officer Baker approached, Father stepped toward a pillar on his
porch and put his hands behind his back. Perry got behind Father and pushed Father
toward the pillar. Perry stepped toward Father and began shoving Father in between his
shoulder blades. Perry told Father to spread his feet and Father complied. Perry applied
handcuffs to Father’s wrists and Father felt incredible pain as if someone was crushing
his left wrist with a vice. Father asked Perry why he was squeezing his wrists and Perry
told Father to stop moving. Father testified he was not moving at the times Perry claimed
he was. When Father asked Perry whether he was going to keep squeezing the cuffs,
Perry yanked on the cuffs, pulling Father backwards and causing Father to spin around.
Perry then threw Father head first toward the front door. Father landed on the right side
of his face, right shoulder, and right knee on the concrete porch. Perry then smashed
Father’s head onto the concrete a second time. The officers then rolled him onto his
stomach.7




       7 Extensive testimony was presented regarding Father’s medical and mental health
concerns following the incident. This evidence was presented in relation to the charge of
battery involving serious bodily injury. (§ 243, subd. (d).) Perry was acquitted on this
charge. The medical evidence therefore is irrelevant to the issues on appeal and we do
not discuss it.


                                            13.
       C.     Neighbor’s Testimony
       A neighbor who lived directly across the street from Father testified he was getting
ready to leave his house when he saw the encounter between Father and the officers
through his front screen door. The neighbor saw Perry approach Father as though he was
going to arrest him. Father was partially behind a pillar on the porch but the neighbor
could see Father’s hands were behind his back. The neighbor turned away momentarily
and, when he looked back, he saw Perry pick Father up and throw him into the air and
onto the ground. Father’s whole body landed on the ground. The neighbor then saw
Perry “ram” Father’s head into the concrete while another officer hovered over Father’s
feet. Prior to this incident, the neighbor did not know Father and had never spoken to
him.
       D.     Perry’s Testimony
       Perry testified that Father appeared agitated and flustered from the outset of the
encounter. Perry believed he had probable cause to arrest Father for violation of a court
order (§ 166, subd. (a)(4)), but he did not immediately do so because he wanted to give
Father an opportunity to comply. Perry eventually radioed for assistance once it became
clear he would have to arrest Father. After Officer Baker arrived, Perry decided to
handcuff Father using a “quick cuff” technique. He put the handcuffs on Father’s wrists
and adjusted them. According to Perry, the cuffs went on easily and quickly, but the left
cuff went two to three clicks tighter than Perry wanted. The handcuffs required a
handcuff key to loosen them, and Perry explained that inserting the key can be difficult.
Perry inserted the handcuff key to loosen the cuff, but Father was moving during this
process, causing the left cuff to go from too tight to too loose. Perry therefore had to
tighten the cuffs a couple of clicks again. Perry denied he was tightening the cuffs to
cause pain.
       Perry testified that Father pulled away by stepping and leaning forward and
turning right and left. Perry pulled Father back and, in the process, was stabbed in the

                                             14.
left hand with the cuff key. This caused Perry pain, which caused him to let go of Father.
Father started to circle back and square up with Perry so Perry knocked him off balance.
Both Father and Perry went to the ground. Perry thought Father was trying to escape.
       Once on the ground, Perry pushed Father’s left shoulder blade to get him onto his
stomach. As soon as Perry let up Father started to roll over again so Perry pushed Father
over again.
       E.     Officer Baker’s Testimony
       When Officer Baker arrived on scene, Father was hostile, loud, and yelling.
According to Officer Baker, Father did not comply with Perry’s directives to turn around,
so Perry forced Father to turn around by using a wristlock, which is a pain compliance
technique. Perry put the handcuffs on Father and tried to adjust them with the handcuff
key. Father was not standing still, making the cuffs more difficult to adjust. Eventually,
Father spun all the way around as if he was trying to get away, and Father and Perry both
tumbled to the ground. Father landed on his right shoulder and Officer Baker kneeled
over his ankles to prevent him from kicking. Perry rolled Father onto his stomach, but
Father kept trying to turn over. Perry was bleeding where the handcuff key punctured his
hand. Officer Baker eventually got Father onto his stomach, did a cursory search, and
adjusted and double locked the handcuffs. Officer Baker did not see Perry lift Father off
the ground, throw him to the ground, or slam his head into the ground.
       F.     Mother’s Testimony
       According to Mother, Father appeared angry during the entire encounter. Perry
told Father to turn around, but Father refused. Perry tried to handcuff Father, but Father
was moving his arms and body. Perry forced Father to turn around and Father went to
the ground. Mother did not know whether Father fell or was wrestled or pushed to the
ground. Father continued to move and Perry held him down. She did not see Perry slam
Father’s head into the ground.



                                            15.
Post-Arrest Conduct
       Officer Baker walked Father to his patrol car and drove him to the police
department. Once there, Officer Baker briefly left the car and then returned. Father
asked him to loosen the cuffs and he did so. Father testified that, while he was sitting in
the car with Officer Baker, he recalled having seen Perry a few months earlier, sitting in a
restaurant with a woman named Elizabeth, with whom Father had a sexual relationship
nine to ten years prior. Father asked Officer Baker whether Perry was married to
Elizabeth and Officer Baker said he thought so.
       Perry then came to the car. Father asked Perry whether he was married to
Elizabeth. According to Father, Perry confirmed he was. According to Perry, Perry did
not respond. Perry took Father to another car and drove him to the jail. According to
Father, Perry sat Father on the sidewalk at the jail. Father asked, “So this is all because
of Elizabeth?” and Perry responded, “Yeah. Payback’s a bitch. Karma’s a bitch, ain’t
it?”
       Perry testified he is married to Elizabeth. He also testified he was unaware of any
contact between Father and Elizabeth until after the arrest, when he left Father at the jail
and called his wife.
Jury Instructions
       There is no pattern jury instruction for the offense of assault by a public officer
under section 149. Perry’s defense counsel submitted proposed instructions, and the
court instructed the jury with a modified version of those instructions as follows:

       The defendant is charged in Count 1 with Assault by a Peace Officer.

       To prove that the defendant is guilty of the crime, The People must prove
       that:

       1. The defendant was a peace officer at the time of the conduct;

       2. The defendant was acting under color of authority as a peace officer.



                                             16.
       3. The defendant assaulted or beat another person; and

       4. The defendant acted without legal necessity.

       A peace officer is a public officer.

       Color of authority means a person is performing an act that is made
       possible only because he is clothed with the authority of law, or acting
       under pretense of law.

       Beating another person is synonymous with committing a battery on
       another person

       Both assault and battery are defined in other instructions.

       In order to prove that the defendant acted without legal necessity, the
       People must prove that he used more force than was necessary under the
       circumstances.

       A peace officer may use reasonable force to arrest or detain a person, to
       prevent escape, or to overcome resistance, when he has reasonable cause to
       believe that the person has committed a crime. Reasonable cause to believe
       that a person has committed a crime exists when the facts known to the
       arresting officer at the time of the arrest would persuade someone of
       reasonable caution that the person to be arrested has committed a crime. A
       peace officer may arrest someone if he or she has reasonable cause to make
       an arrest. Any other arrest is unlawful. In deciding whether the the [sic]
       arrest was unlawful consider evidence of the officer’s training and
       experience and all the circumstances known by the officer when he or she
       arrested the person. In deciding whether defendant used unreasonable or
       excessive force, you must determine the amount of force that would have
       appeared reasonable to a peace officer in defendant’s position under the
       same or similar circumstances. A peace officer who detains or who makes
       or attempts to make an arrest is not required to retreat or cease from his
       efforts because of the resistance or threatened resistance of the person being
       resisted.”
The court also instructed the jury on a variety of corollary issues, including when exigent
circumstances may permit a police officer to enter a residence without a warrant, when
Miranda8 warnings are required, when an officer is excused from the requirement to


       8   Miranda v. Arizona (1966) 384 U.S. 436.


                                              17.
inform the person being arrested of the authority for and intent to arrest, and all of the
offenses defense counsel argued Father could have been arrested for, including violation
of a court order (§ 166, subds. (a)(4), (b)(1)), child abduction (§ 277), and resisting a
peace officer (§ 148).
Closing Arguments
       The prosecutor argued Perry should have tried calling Father and instructing him
to bring Daughter to the police station to effectuate a custody transfer, rather than
allowing the estranged parents to confront each other face-to face in a non-neutral
location. The prosecutor further claimed Perry violated the custody order by requiring
Father to exchange Daughter at his home, rather than the police department or school.
Accordingly, the prosecutor argued, Perry was “no longer acting with lawful necessity”
after he told Father to “grab [his] daughter” and all of Perry’s conduct from that point
forward was therefore unlawful: “From this point forward, he’s basically a rogue cop,
right?” The prosecutor cited a number of Perry’s actions that were illegal as a result of
this initial illegality: telling Father to turn around, pushing him, telling him to spread his
feet, handcuffing him, overtightening the cuffs, throwing Father onto the ground,
smashing Father’s head into the ground, not informing Father he was under arrest,
entering Father’s house without a warrant to retrieve Daughter, and not advising Father of
his Miranda rights.
       The prosecutor continued, “The defendant’s actions were unlawful because he
insisted the child custody exchange take place at a non-neutral, non-public location.
Thus, he violated the custody order. There was no necessity in waking up a sick,
sleeping child. Objectively speaking, was he acting in the best interest of the child or was
he out for personal revenge?” The prosecutor went on to state, “The defendant’s actions
were unlawful and not necessary. Thus the defendant did not act with lawful necessity.
Thus the defendant is guilty of an assault by a police officer or public officer.”



                                              18.
       In response, defense counsel argued Perry was “only doing … what the law
mandated he do – enforce a court order and make sure a 15-year-old girl was safe and
unharmed.” Defense counsel further argued Perry had a “reasonable, objective basis” for
arresting Father for violating a custody order and resisting arrest. Defense counsel
described proof beyond a reasonable doubt as being able to “look at yourself in the mirror
and say, ‘The prosecutor proved beyond a reasonable doubt that Tyson Perry committed a
crime when he arrested [Father.]’ ” She contended Perry did not violate section 149 if he
acted with lawful necessity, and if his use of force was “lawful, reasonable, and
appropriate.” She contended Perry’s conduct was reasonable and necessary when he
handcuffed Father and took him to the ground. She further argued Perry did not slam
Father’s head on the ground a second time.
       Defense counsel emphasized the jury was required to find Perry’s conduct
unlawful before it could convict him of assault by a public officer under section 149.
Defense counsel contended Perry acted lawfully in each of what she characterized as
three phases of the encounter: (1) going to Father’s home to retrieve Daughter,
(2) arresting Father, and (3) using force against Father. Defense counsel characterized as
“trashy,” “salacious,” and “despicable” the prosecutor’s theory that Perry had a motive to
use excessive force against Father based on Father’s prior relationship with Perry’s wife.
       In his rebuttal closing, the prosecutor argued Perry was motivated by personal
animus and lost his cool. The prosecutor referred to testimony from Perry’s lieutenant
suggesting a custody dispute generally would be handled through an incident report
rather than arrest and argued there was no necessity to throw Father on the ground, bash
his face on the concrete, or overtighten the handcuffs when Father complained.
                                      DISCUSSION
I.     Theory of Guilt Based on Unlawful Arrest
       The jury was presented with two theories upon which it could find Perry guilty of
assault by a public officer. The first theory focused on the legality of Perry’s contact

                                             19.
with Father: the prosecutor argued Perry was not empowered to use any force against
Father because the visit to Father’s home to effectuate a custody transfer and the
subsequent arrest were unlawful. The second theory focused on the reasonableness of the
force utilized: the prosecutor argued the force used in handcuffing Father, taking him to
the ground, and hitting his head on the cement was unreasonable and unnecessary.
       Perry challenges the first of these theories, contending it was not factually
supported. However, during the pendency of this appeal, the First District Court of
Appeal decided People v. Lewelling (2017) 16 Cal.App.5th 276 (Lewelling), and held that
a wrongful arrest, standing alone, does not provide a basis for conviction under
section 149. Thereafter, Perry submitted a supplemental brief, citing Lewelling and
arguing this theory was also legally invalid. According to Perry, because of the
prosecutor’s argument, the court’s instructions, and the closeness of the case, it is
impossible to determine the jury’s verdict necessarily rested on a valid ground and
reversal is therefore required.
       The Attorney General advances a different interpretation of section 149.
According to the Attorney General, section 149 only punishes uses of force that are
executed without any justification to invoke color of authority or with a vindictive private
motive. Thus, the Attorney General argues, a use of force is not punishable under
section 149, even if excessive or unreasonable, so long as the public official properly
invoked color of authority.9 The Attorney General contends “lawful necessity” existed
for Perry to assist in enforcement of the custody order. As such, the Attorney General
contends Perry cannot be prosecuted pursuant to section 149 for any use of force
associated with that exercise of police authority, unless the jury finds Perry had a private,
vengeful motive. Because the record does not reflect the jury properly understood this



       9   The Attorney General therefore contends Lewelling was wrongly decided.


                                             20.
task, the Attorney General agrees reversal is required but contends the matter must be
remanded for retrial on a proper legal theory.
       The Merced County District Attorney filed a brief as amicus curiae. The District
Attorney does not argue the judgment is supportable on a theory Perry lacked lawful
authority to contact or arrest Father. Instead, the District Attorney argues the jury was
properly instructed and the record is sufficient to conclude the jury based its verdict on a
valid legal theory, i.e., that Perry used more force than necessary under the
circumstances.
       The parties agree Perry had lawful authority to enforce the custody order and the
People do not argue Perry lacked lawful authority to arrest Father for its violation. We
must decide whether permitting the case to go to the jury on a theory that he lacked such
authority constituted legal or factual error, or both. (People v. Guiton (1993) 4 Cal.4th
1116, 1126-1127, 1129 (Guiton) [holding different standards of review apply depending
on whether a theory of guilt is legally or factually insufficient].) We begin with an
overview of federal and state law governing uses of force by law enforcement and
ultimately conclude section 149 is governed by the same standards as those applied in the
Fourth Amendment context. We also agree with Lewelling that an unlawful arrest or
detention alone is not a legally valid basis for conviction under section 149. We then
review the prosecutor’s arguments and the court’s instructions in this case and conclude
they erroneously invited the jury to find Perry violated section 149 by unlawfully
arresting Father. We therefore reverse the judgment because the record reveals no basis
to conclude the jury necessarily rested its verdict on a valid theory of guilt. However, we
find substantial evidence exists to support conviction on a valid theory, i.e., that Perry
used more force than would have appeared necessary to a reasonable officer on the scene,
and we therefore conclude retrial is permitted.




                                             21.
       A.     Law Regarding Police Officer Use of Force
              1.     Federal Law
       The primary limitation on the use of force by law enforcement officers is found in
the Fourth Amendment to the United States Constitution, which provides: “The right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” (U.S. Const. 4th Amend.; Mapp v.
Ohio (1961) 367 U.S. 643 [Fourth Amendment made applicable to the states through the
Fourteenth Amendment].) The Fourth Amendment protects the people from arrest
without probable cause (Bailey v. United States (2013) 568 U.S. 186, 192; Kaupp v.
Texas (2003) 538 U.S. 626, 630), investigatory detention without reasonable suspicion
(Terry v. Ohio (1968) 392 U.S. 1, 6-7; Florida v. Royer (1983) 460 U.S. 491, 498), and
the use of excessive force by law enforcement during the course of either (Graham v.
Connor (1989) 490 U.S. 386, 395 (Graham)).
       Federal law recognizes that “the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it.” (Graham, supra, 490 U.S. at p. 396.10) The reasonableness of that

       10 Perry contends throughout his briefing that we are bound to apply the standards
articulated in Graham in this case. Graham was a civil rights action brought pursuant to
section 1983 of title 42 of the United States Code and it involved an alleged violation of
the Fourth Amendment. Long-standing and deeply held principles of federalism counsel
that we have no obligation to import those standards into our state law defining criminal
offenses. (People v. Buza (2018) 4 Cal.5th 658, 684 (Buza) [“[I]t remains a basic tenet of
our system of federalism that ‘the nation as a whole is composed of distinct geographical
and political entities bound together by a fundamental federal law but nonetheless
independently responsible for safeguarding the rights of their citizens.’ ”]; Montana v.
Egelhoff (1996) 518 U.S. 37, 42 [“ ‘[P]reventing and dealing with crime is much more
the business of the States than it is of the Federal Government, and ... we should not
lightly construe the Constitution so as to intrude upon the administration of justice by the
individual States.”].) Although decisions of the United States Supreme Court interpreting

                                            22.
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.” (Ibid.) The reasonableness inquiry is an
objective one: “whether the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard to their underlying intent or
motivation.” (Id. at p. 397.) In other words, “[a]n officer’s evil intentions will not make
a Fourth Amendment violation out of an objectively reasonable use of force; nor will an
officer’s good intentions make an objectively unreasonable use of force constitutional.”
(Ibid.) The reasonableness test evaluates the totality of the relevant circumstances, which
may include “the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” (Id. at p. 396.)
        A person may sue civilly under federal law for a violation of his or her Fourth
Amendment rights by an officer acting under color of state law. (42 U.S.C. § 1983.)
Additionally, federal law imposes criminal penalties where the officer’s violation of a
person’s civil rights is willful. (18 U.S.C. § 242.)
              2.      California State Law
       The United States Constitution provides the floor, rather than the ceiling, for the
protection of individual liberties. Thus, the States are free to enact greater protections
than those required by the federal Constitution. (See Mills v. Rogers (1982) 457 U.S.
291, 300 [“Within our federal system the substantive rights provided by the Federal
Constitution define only a minimum. State law may recognize liberty interests more
extensive than those independently protected by the Federal Constitution. [Citation.] If


constitutional provisions that parallel our state constitution are “entitled to respectful
consideration,” those decisions are at most persuasive in interpreting section 149. (See
Buzo, supra, at p. 684.) Ultimately, it is the state that retains the power to determine what
is criminal and what is not. (Brecht v. Abrahamson (1993) 507 U.S. 619, 635.) Thus,
while we find Graham persuasive in this context for reasons we discuss below, it is not
binding on our interpretation of section 149.


                                              23.
so, the broader state protections would define the actual substantive rights possessed by a
person living within that State.”].) Nevertheless, California has generally adopted Fourth
Amendment jurisprudence for interpreting analogous provisions of the California
Constitution. (See Buza, supra, 4 Cal.5th at pp. 685-686; People v. Celis (2004)
33 Cal.4th 667, 673 [interpreting probable cause for purposes of arrest and reasonable
suspicion for purposes of detention]; see also People v. Camacho (2000) 23 Cal.4th 824,
830 [application of exclusionary rule]; Cal. Const., art I, § 13.) Our courts therefore
apply federal legal standards when analyzing the reasonableness of a search or seizure
under California constitutional law.
       In addition to the California Constitution, California statutes govern police officer
uses of force. A police officer is permitted to use “reasonable force” to effectuate an
arrest, to prevent escape, or to overcome resistance if the officer “has reasonable cause to
believe that the person to be arrested has committed a public offense.” (§ 835a.) An
officer who uses unreasonable force could be sued civilly for the violation. (Gov. Code,
§ 820 [public employees statutorily liable to the same extent as private persons for
injuries caused by their acts or omissions]; Hernandez v. City of Pomona (2009)
46 Cal.4th 501, 512-517 (Hernandez); Edson v. City of Anaheim (1998) 63 Cal.App.4th
1269, 1272, 1274.) An officer who arrests or detains a person “without a regular process
or other lawful authority” may be criminally prosecuted for violation of section 146, a
misdemeanor. (§ 146, subd. (a).) Additionally, section 149, the statute at issue in this
case, applies criminal penalties for an officer’s use of force “without lawful necessity.”11
(§ 149.)




       11 “Every public officer who, under color of authority, without lawful necessity,
assaults or beats any person, is punishable by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment in a county jail not exceeding one year, or pursuant to
subdivision (h) of Section 1170, or by both that fine and imprisonment.” (§ 149.)


                                            24.
       Although enacted in 1872, section 149 has been the subject of relatively limited
decisional law. There is, however, seeming consensus that “without lawful necessity”
means “more force than was necessary under the circumstances.” (People v. Mehserle
(2012) 206 Cal.App.4th 1125, 1140 (Mehserle); Lewelling, supra, 16 Cal.App.5th at
p. 297.) This interpretation is effectively shorthand for the standard applied in cases
alleging excessive force in violation of the Fourth Amendment. (See Graham, supra,
490 U.S. at pp. 396-397 [reasonableness inquiry makes allowance for officers making
“split-second judgments … about the amount of force that is necessary in a particular
situation”]; United States v. Reese (9th Cir. 1993) 2 F.3d 870, 885 [endorsing instruction
that described unreasonable force under Graham as “more force than is necessary under
the circumstances”]; see Ne Casek v. City of Los Angeles (1965) 233 Cal.App.2d 131,
137 [describing section 149 as imposing liability for the use of excessive force].)
       We agree this standard, encompassing the Fourth Amendment standard of
reasonable necessity, appropriately governs section 149. The plain language of
section 149 itself suggests this result. (People v. Scott (2014) 58 Cal.4th 1415, 1421
[“ ‘ “We begin by examining the statute’s words, giving them a plain and commonsense
meaning.” ’ ”.].) The words “lawful” and “necessity” are not fraught with ambiguity.
“Lawful” means “permitted or recognized by law.” (Black’s Law Dictionary (10th ed.
2014).) “Necessity” means “[s]omething that must be done or accomplished for any one
of various reasons.” (Ibid.) Taken together, these words suggest section 149 punishes
uses of force that exceed what is reasonably required for the accomplishment of a
recognized, lawful purpose. This is the same type of force proscribed by the Fourth
Amendment. (Graham, supra, 490 U.S. at pp. 396-397.) There is no meaningful
distinction between force that is not reasonably required under the circumstances (ibid.),
and force “without lawful necessity” (§ 149).
       Based on the foregoing, we reject the Attorney General’s argument that
section 149 applies only when an officer lacks facial justification for invoking law

                                            25.
enforcement authority.12 Under the Attorney General’s view of section 149, an officer
who has a lawful basis for arrest or detention could not be prosecuted under the statute,
regardless of the degree of or necessity for the force used. There is no logical or textual
basis for this interpretation, which effectively replaces the requirement that the officer
used force “without lawful necessity” with a requirement the officer used force “without
lawful authority.”13 The Attorney General also complains that our interpretation of
section 149 would subject the “least attempted touching” by an officer to prosecution.
However, this is so only where a reasonable officer in the same circumstances would find
the least threatened touching objectively unreasonable. The qualifier of “lawful
necessity” is sufficient to differentiate between uses of force that violate the statute and
those that do not.
              3.      Overlap of Unlawful Arrest and Use of Force Claims
       The law is somewhat unsettled when it comes to the standards governing an
officer’s use of force in the context of an arrest that is, itself, alleged to be unlawful.
       Federal courts of appeal that have considered the issue unanimously agree that a
lack of probable cause for arrest does not establish a per se use of excessive force under
the Fourth Amendment. (See Velazquez v. City of Long Beach (9th Cir. 2015) 793 F.3d
1010, 1024 & fn. 13 (Velazquez) [collecting cases].) These courts have therefore rejected

       12 As an example, the Attorney General explains an officer could be prosecuted
for “ordering persons standing in line to disperse at a betting counter, just so he could
place a personal bet himself.”
       13 The Legislature used the phrase “without … lawful authority” in section 146,
which relates to unlawful arrest, and we presume the Legislature intended to use different
language in section 149. (See Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334,
343 [“ ‘[W]hen different words are used in contemporaneously enacted, adjoining
subdivisions of a statute, the inference is compelling that a difference in meaning was
intended.’ ”]; People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [“ ‘[W]e consider the
language of the entire scheme and related statutes, harmonizing the terms when
possible.’ ”]; Lewelling, supra, 16 Cal.App.5th at p. 298 [holding that section 146 and
section 149 criminalize different conduct].)


                                               26.
claims that assert any use of force is excessive if the arrest is unlawful. (Ibid.) However,
the Ninth Circuit Court of Appeals has held the circumstances surrounding an unlawful
seizure may be pertinent to the evaluation of the reasonableness of an officer’s use of
force because, pursuant to Graham, supra, 490 U.S. at pp. 394-397, an excessive force
claim under the Fourth Amendment is ultimately a challenge to the “overall
reasonableness of the seizure”:

       “Graham specifies ‘the severity of the crime at issue’ as one of the factors
       to be considered, and stresses the need to attend to the specific ‘facts and
       circumstances of each particular case.’ [Citation.] Conducting this fact-
       based inquiry encompasses a consideration of the facts known to the police
       officers at the time. [Citation.] Where officers are presented with
       circumstances indicating that no crime was committed, the ‘severity of the
       crime at issue’ factor is necessarily diminished as a justification for the use
       of force—although, as our cases have held, the force used may still be
       reasonable if the other Graham factors taken together favor that
       conclusion.” (Velazquez, supra, 793 F.3d at p. 1025; see Jones v. Parmley
       (2d. Cir. 2006) 465 F.3d 46, 62 [“[T]he reasonableness test established in
       Graham remains the applicable test for determining when excessive force
       has been used, including those cases where officers allegedly lack probable
       cause to arrest.”].)
Thus, the Ninth Circuit has concluded “the facts that gave rise to an unlawful detention or
arrest can factor into the determination whether the force used to make the arrest was
excessive.” (Velazquez, supra, 793 F.3d at p. 1024.)
       The Tenth Circuit Court of Appeals has taken a more limited view of the relevance
of an unlawful arrest or detention to an excessive force claim:

       “[T]he excessive force inquiry evaluates the force used in a given arrest or
       detention against the force reasonably necessary to effect a lawful arrest or
       detention under the circumstances of the case. Thus, in a case where police
       effect an arrest without probable cause or a detention without reasonable
       suspicion, but use no more force than would have been reasonably
       necessary if the arrest or the detention were warranted, the plaintiff has a
       claim for unlawful arrest or detention but not an additional claim for
       excessive force.” (Cortez v. McCauley (10th Cir. 2007) 478 F.3d 1108,
       1126 (Cortez).)



                                             27.
Under this rationale, an officer’s use of force is evaluated under the same standard,
regardless of whether or not the arrest was lawful: whether the officer used more force
than would have been reasonably necessary to effectuate a lawful arrest. (Cortez, supra,
478 F.3d at p. 1127.)
       In Lewelling, supra, 16 Cal.App.5th at pp. 296-300, California’s First District
Court of Appeal considered the overlap between unlawful detention and excessive force
in the context of section 149, the statute at issue in the instant case. Specifically, the
court considered whether the trial court correctly instructed the jury that the “without
lawful necessity” element of section 149 was defined in a separate instruction concerning
an officer’s lawful performance of his duties. When combined, those instructions
informed the jury the “without lawful necessity” element could be met by proof that the
officer either was unlawfully arresting or detaining someone, or using unreasonable or
excessive force when making an otherwise lawful arrest or detention. (Lewelling at
p. 297.)
       According to the court, that directive permitted the prosecutor to satisfy this
element “simply by proving that defendant carried out an unlawful detention.”
(Lewelling, supra, 16 Cal.App.5th at p. 297.) The court reviewed the language of
section 149 and related statutes and concluded this directive was erroneous. In other
words, the Lewelling court, like the federal courts, concluded an officer cannot be found
to have used force “without lawful necessity” simply by wrongfully arresting or detaining
someone.14 (Id. at p. 296; see Velazquez, supra, 793 F.3d at p. 1024 & fn. 13; see
People v. Dukes (1928) 90 Cal.App. 657, 661–662 [unlawful arrest, standing alone, is
insufficient to support conviction under section 149].)

       14 Lewelling did not address whether the circumstances surrounding an unlawful
arrest or detention may be considered as part of the totality of the circumstances in
evaluating the lawful necessity of an officer’s use of force, and we need not resolve that
question here because it is undisputed on appeal that Perry had lawful authority to arrest
Father.


                                              28.
       We agree with Lewelling that the elements of section 149 are not satisfied simply
by establishing an unlawful arrest or detention.15 As explained above, the proper focus
under section 149 is the reasonable necessity for the degree of force used. Section 149
applies when an officer “without lawful necessity, assault or beats any person.” (§ 149.)
The plain language requires that the assault or battery lack lawful necessity, not the arrest
or detention. It may be that the context of a particular arrest is such that no reasonable
officer would have considered any use of force reasonably necessary. However, this
determination must be made in consideration of the totality of the circumstances. (See
Mehserle, supra, 206 Cal.App.4th at p. 1140 [evidence that unarmed victim was fatally
shot after he surrendered and was not a threat was sufficient for jury to conclude officer
acted without lawful necessity]; see also Graham, supra, 490 U.S. at p. 396.) To hold
otherwise, that an unlawful arrest constitutes a per se violation of section 149, ignores
“the fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.” (Graham, supra, 490 U.S. at p. 397.) It also
would convert a prosecution for excessive force into a prosecution for unlawful arrest,
which violation is already adequately addressed by section 146.
              4.     Application to the Facts of This Case
       With these principles in mind, we turn to the facts of the instant case. Perry
contends the trial court erroneously instructed the jury it could find Perry violated
section 149 solely on the basis Perry did not have probable cause to arrest Father. We
agree the instructions erroneously suggested this result.




       15 Perry challenges section 149 as unconstitutionally vague, but concedes that
interpreting section 149 to comport with both Graham and Lewelling would resolve this
concern. Accordingly, in light of our holding, we do not address the vagueness
challenge.


                                             29.
       The jury was properly informed it was required to find beyond a reasonable doubt
that Perry acted without legal necessity. The instructions also properly stated, “In order
to prove that the defendant acted without legal necessity, the People must prove that he
used more force than was necessary under the circumstances” and informed the jury this
was to be determined from the perspective of a reasonable peace officer in the same or
similar circumstances.
       However, the instructions also explained an officer can use reasonable force to
arrest a person when he has reasonable cause to believe the person has committed a
crime, and “may arrest someone if he or she has reasonable cause to make an arrest,” but
that “[a]ny other arrest is unlawful.” The instructions then encouraged the jury to
determine whether the arrest was unlawful: “In deciding whether the the [sic] arrest was
unlawful consider evidence of the officer’s training and experience and all the
circumstances known by the officer when he or she arrested the person.” Together, these
instructions suggest an arrest without reasonable cause is unlawful and the use of force in
such arrest is therefore “without legal necessity.” As explained above, this inference is
erroneous.16 Instructing the jury that an officer is authorized to use force in arresting or
detaining a person, or to prevent escape or overcome resistance, provided the jury with
relevant context regarding the circumstances in which an officer is authorized to use
force. (§ 835a.) Encouraging the jury to resolve whether the arrest was unlawful likely
misled the jury to believe resolution of this issue would be dispositive of Perry’s guilt.




       16 The misleading instructions were requested by Perry’s defense counsel, who
asserted “the right to use reasonable force flows from” the right to make an arrest
supported by probable cause and that the jury would be charged with “deciding whether
Mr. Perry had the probable cause to arrest [Father].” However, the People do not argue
forfeiture or invited error and, in any event, the court was required to properly instruct the
jury on the elements of the offense. (People v. Merritt (2017) 2 Cal.5th 819, 824.) We
therefore reach the issue on the merits.


                                             30.
       When a jury is presented with alternate theories of guilt, one of which is contrary
to law, reversal is required unless there is a basis to conclude the verdict actually was
based on a valid ground. (Guiton, supra, 4 Cal.4th at p. 1129.) In other words, we
presume the error affected the judgment. (In re Martinez (2017) 3 Cal.5th 1216, 1224.)
This is because “ ‘[j]urors are not generally equipped to determine whether a particular
theory of conviction submitted to them is contrary to law – whether, for example, the
action ... fails to come within the statutory definition of the crime. When, therefore, jurors
have been left the option of relying upon a legally inadequate theory, there is no reason to
think that their own intelligence and expertise will save them from that error.’ ” (Guiton,
supra, 4 Cal.4th at p. 1125, quoting Griffin v. United States (1991) 502 U.S. 46, 59.) We
therefore will reverse if we are “ ‘ “unable to determine which of the prosecution’s
theories served as the basis for the jury’s verdict.” ’ ” (Guiton, supra, at p. 1130.)
       Here, we cannot conclude the verdict was based on a valid ground. We
acknowledge the jury was instructed it could find Perry guilty upon proof he used more
force than necessary under the circumstances and counsel for the defense and prosecution
presented some argument regarding the degree of force used. However, nothing in the
verdict form reveals the theory upon which the jury’s finding of guilt was based. The
jury requested to re-hear the testimony from Officer Baker and Perry regarding the
“takedown” and the period between Father being handcuffed and going to the ground,
suggesting the jury may have been concerned about the necessity of this conduct.
However, the import of these requests is far from clear and, standing alone, they are not
sufficient for us to conclude the verdict actually was based on a valid ground. (Guiton,
supra, 4 Cal.4th at p. 1129.) To the contrary, the primary focus of the evidence,
argument, and instructions was the invalid theory that Perry could be found guilty solely
upon proof he unlawfully arrested Father. Reversal is required.17

       17The parties dispute whether retrial would be permitted under the Attorney
General’s interpretation of section 149, which would criminalize only uses of force

                                             31.
II.    Refusal to Instruct on Graham Factors
       Perry challenges the court’s refusal to give a jury instruction outlining factors that
bear on the reasonableness of an officer’s use of force, as set out in Graham, supra,
490 U.S. at p. 396. Because we reverse on other grounds, we need not resolve whether
the court’s refusal constituted error or was prejudicial to Perry. However, we briefly
address the proposed instruction for purposes of giving guidance on remand.
       The proposed instruction would have informed the jury, “You should consider,
among other factors, the following: [¶] a. The seriousness of the crime at issue; [¶] b.
Whether [Father] reasonably appeared to pose an immediate threat to the safety of
defendant Perry or others; and [¶] c. Whether [Father] was actively resisting arrest or
attempting to evade arrest.”
       These factors derive directly from Graham, supra, 490 U.S. at 396. They also are
included in California’s civil jury instructions for battery on a peace officer. (CACI No.
1305; see Hernandez, supra, 46 Cal.4th at pp. 512-517 [approving Fourth Amendment
reasonableness standard for California negligence claims involving use of force].)
Additionally, all three factors were at issue in this case: the prosecutor argued it was
unnecessary for Perry to arrest Father, and that Father was not threatening anyone or
resisting arrest. The proposed instruction is an accurate statement of the law and
supported by the facts of the case.18



during arrests or detention motivated by vengeance and executed without lawful
authority. However, we have rejected the Attorney General’s interpretation. The
evidence is sufficient to permit retrial on the theory that Perry used more force than was
reasonably necessary under the circumstances.
       18 We note, however, that Graham counsels the reasonableness test is not capable
of precise definition or mechanical application, and the reasonableness of the seizure
must be assessed with regard to the totality of the circumstances confronting the arresting
officer. (Graham, supra, 490 U.S. at pp. 396-397.) Thus, these factors may not be an
appropriate subject of instruction in every case.


                                             32.
III.   Motive Evidence
       Perry contends the trial court erred in admitting evidence of motive. We address
this issue to provide guidance on remand.
       Under Graham, motive or ill intentions are irrelevant to the determination of
whether an officer’s use of force was reasonable because the inquiry is an objective one.
(Graham, supra, 490 U.S. at p. 397.) However, in criminal cases, evidence of motive is
generally relevant because it “ ‘makes the crime understandable and renders the
inferences regarding defendant’s intent more reasonable.’ ” (People v. Riccardi (2012)
54 Cal.4th 758, 815, abrogated on another point by People v. Rangel (2016) 62 Cal.4th
1192, 1216.)
       In this case, the jury was presented with competing factual scenarios. In Father’s
version of the events, Father was physically compliant (if verbally confrontational), but
Perry repeatedly overtightened the handcuffs, threw Father to the ground, and smashed
his head on the ground a second time. In Perry’s version of the events, Father was
physically non-compliant, causing the handcuffs to overtighten and requiring Perry to
sweep Father to the ground for safety purposes. Perry denied ever smashing Father’s
head on the ground a second time.
       In determining which version of these events was more credible, the jury was
entitled to consider whether Perry had any ill motive in confronting Father. Such motive,
if believed, could make more understandable an inference that Perry engaged in the
conduct Father described.
       Concern that the jury may improperly consider motive in determining the
reasonableness of the force used may be resolved by way of a limiting instruction. We
leave it to the parties and the court to craft such an instruction on remand, if necessary.




                                             33.
                                  DISPOSITION
      The judgment is reversed.



                                                _____________________
                                                         SNAUFFER, J.
WE CONCUR:


 _____________________
DETJEN, Acting P.J.


 _____________________
DE SANTOS, J.




                                      34.
