CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent,
Defendant and Appellant.
(Contra Costa County
Super. Ct. No. 121946-8)
ORDER MODIFYING OPINION
AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
It is ordered that the opinion filed herein on February 25, 2016, be modified as follows:
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.”
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:
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 shall end the paragraph and the following sentence, beginning with the words, “ ‘[T]he failure to instruct sua sponte” shall begin a new paragraph.
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.”
CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent,
Defendant and Appellant.
(Contra Costa County
Super. Ct. No. 121946-8)
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, require either a modification or reversal of Brown’s conviction for resisting an officer by force or violence.1
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 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 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 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 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 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
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.
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.
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 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.)
“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 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.4that 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.] 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 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 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 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.