Trial court committed reversible error by failing to instruct sua sponte on assault (Pen. Code, § 240) as a lesser included offense of using force or violence to resist an officer (Pen. Code, § 69). Brown, a 67-year-old man, was riding his bike down the sidewalk at dusk in an area known for drug trafficking and gang activity. An officer yelled at him to stop, but he fled. The officers caught him and beat him, fracturing his ribs. The officers claimed their beating was necessary to subdue Brown, who was striking them with closed fists. Brown denied striking the officers and claimed he was lying prone on the ground when one officer did a “Superman” dive onto his back and started pummeling his head. The jury convicted Brown of resisting the officers. Brown appealed, arguing the trial court erred in failing to instruct sua sponte on assault as a lesser included offense of resisting. Held: Reversed. Brown argued, and the People conceded, that assault was a lesser included offense under the accusatory pleadings test because the information charged Brown with both ways of violating section 69—attempting by threats or violence to prevent an officer from performing a duty and knowingly resisting through the use of force or violence against an officer in the performance of his or her duty. Nevertheless, the People argued that reversal was not required because the jury, by convicting Brown, had obviously credited the prosecution’s evidence, including its evidence that the arrest was lawful because the officers’ use of force was appropriate. The Court of Appeal disagreed. The omission of the assault instruction was prejudicial under People v. Watson (1956) 46 Cal.2d 818 because it left the jury with an all or nothing choice, there was substantial evidence that the officers used excessive force during the arrest rendering it unlawful, and when an arrest is unlawful, the defendant can only be convicted of simple assault or battery, not resisting.

Reversal required where trial court admitted improper and unnecessary expert testimony regarding police standards for use of force. The prosecutor, over defense objection, called a police sergeant to provide expert testimony on police officer “defensive tactics.” The sergeant explained that reasonable force meant using force “at least one level higher than what you’re . . . encountering.” According to the sergeant there are three levels of force: low—batons and fists, intermediate—taser and pepper spray, and high—firearm. The prosecutor asked the sergeant hypothetically what level of police force was appropriate when a suspect was swinging at officers with a closed fist. Albert said that a low or intermediate response was appropriate. The Court of Appeal agreed with Brown that the expert evidence was improper and unnecessary. Most states do not admit expert testimony on excessive force issues. And, in those that do, “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.” The error was prejudicial under Watson.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A141172.PDF