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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Lewis R. NELSON, Defendant and Appellant.

No. B104176.

Decided: October 07, 1997

Erebka L. Henry and Nana Gyamfi, Los Angeles, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.

A jury found appellant not guilty of battery with serious bodily injury (Pen.Code § 243, subd. (d);  count I;  statutory references, unless otherwise noted, are to the Penal Code) but guilty of battery on school property (§ 243.2;  count II), a misdemeanor.   Appellant was sentenced to one year summary probation and a $500 fine.

Appellant contends the trial court prejudicially erred when, during jury deliberations, it withdrew an instruction it had previously given the jury.   We disagree and affirm the judgment.


The alleged offense occurred Monday, January 2, 1995, at about 7:30 p.m. after an unusually long practice by the Harbor Community College womens' basketball team.   Appellant was the team coach and the victim, Latrice Polk, the team's point guard.

The events leading up to the alleged offense were undisputed.

Practice started about 3 p.m.   It began with drills.   Then plays.   Then, with the team divided into Blue and White units, a scrimmage.

Appellant interrupted the scrimmage when the Blue point guard, Tammy Miles, didn't “push” the ball up court as he had ordered.   Appellant made the entire Blue unit run “suicides,” repeated sprints from baseline to center court to baseline.

When Tammy Miles again didn't “push” the ball up court appellant again made the Blue unit run “suicides.”   This pattern repeated itself, according to Lameshia Pittman, a player on the Blue unit, four times until Lameshia, who had sore feet, was allowed to sit down.   The scrimmage resumed but soon angry words were exchanged between Tammy Miles and Lameshia Pittman.

When Tammy Miles approached the bleachers where Lameshia Pittman was sitting, Lameshia stood up and punched her in the mouth.   The fight was protracted with Lameshia doing all or most of the punching.   Everyone-all the players, appellant, and assistant coach Ivy-just watched.   After one and a half to six minutes-estimates varied-appellant finally stopped the fight.   Tammy Miles, bleeding, left the court and went to the restroom.

Appellant ordered the scrimmage to resume but Latrice Polk refused, walked to the bleachers, and started to remove her sneakers.   Appellant yelled at her, “Get your ass back on the court.”

Latrice Polk, clearly upset, yelled back that it wasn't right, appellant shouldn't have let them continue fighting, he should have broken it up.

Appellant again yelled “Get your ass back on the court.”   As assistant coach Ivy wiped up Tammy Miles's blood from the floor, Latrice Polk said she was going home and that appellant could punish her tomorrow.

Appellant said “You're just a big baby” and Latrice Polk answered “You're the baby.”

With Latrice Polk seated on the bleachers, appellant rapidly walked to her.

What happened next was disputed.

Although at least twelve people saw what happened, only five testified,1 two for the prosecution, three for the defense.   Neither assistant coach Ivy nor appellant testified.

Prosecution version

According to the victim, Latrice Polk, and Robyn Sumlin, appellant struck the victim on the nose with the palm of his hand causing her head to hit the bleachers.   He hit her twice more and she fell from the bleachers to the floor, hitting her head, and momentarily losing consciousness.   When she awoke appellant was standing over her yelling “Get up, get up.”   Assistant coach Ivy pulled appellant away and some of the players helped Latrice Polk to her feet.

She sustained a black eye, a cut lip, a bloodied ear, a lump to the back of her head, and various scratches.

Defense version

Lameshia Pittman and Anna Marie Lechmann testified appellant grabbed the victim's shoulders in order to calm her down.   He never punched or pushed her.   Both said the victim never fell onto the floor, only against the bleachers.   According to Lameshia Pittman this fall against the bleachers was thirty seconds after appellant had grabbed the victim's shoulders.   Denetta Patterson testified the victim was standing when appellant, in order to calm her, held the victim's arms.   Miss Patterson said she then turned and didn't see what happened.


At appellant's request and over prosecutor objection, the trial court instructed the jury:  “A Teacher, Vice-Principal, Principal, or any other certificated Employee of the School District shall not be subject to criminal prosecution or criminal penalties for the exercise during the performance of their duties of the same degree of physical control over a pupil that a parent would be legally privileged to exercise as reasonably necessary to maintain order, protect property, or protect the health and safety of pupils.”   This instruction was based upon Education Code section 44807.2

During jury deliberation, at prosecutor request and over appellant's objection, the trial court withdrew this instruction from the jury and told them, “The court has previously instructed the jury regarding Education Code Section 44807.   That Education Code Section does not apply to this case.   It is withdrawn.   You are not to consider it in your deliberations.   Continue your deliberations as though it had not been given.”   Fourteen minutes later the jury returned their verdicts.

Appellant contends the trial court prejudicially erred in withdrawing this instruction.   We consider the contention.

In reliance upon People v. Stouter (1904) 142 Cal. 146, 75 P. 780 and People v. Jennings (1972) 22 Cal.App.3d 945, 99 Cal.Rptr. 739 appellant argues the trial court's conduct deprived him of a fair trial.   But neither Stouter nor Jennings is apposite.   In both, during deliberations, the trial court gave a new instruction allowing the jury to convict the defendant of a new offense.   Here no new instruction was given and no new offense was tendered.

Appellant also asserts:  “Here, the Court withdrew [the] Education Code § 44807 ․ instruction after the Court and both counsel were informed that the jury reached a verdict.”  Contrary to this assertion appellant states “After the withdrawal of the instruction the jury ․ then reached a guilty verdict․”  (Emphasis added).

We have two observations concerning these contradictory assertions.

First, the record does not establish the jury had reached verdicts prior to withdrawal of the subject instruction.   The sole basis for appellant's claim is the prosecutor's unexplained statement “I understand we have a verdict, but I still want to be heard on this (i.e., that the subject instruction be withdrawn).”   Certainly this was not defense counsel's understanding because, in reply, she stated “If the jury has reached a verdict․”   Furthermore, in accordance with CALJIC No. 17.50, the trial court had instructed the jury that “as soon as all of you have agreed upon a verdict ․ have it dated and signed by your foreperson and then return with it to this courtroom.”   Neither the clerk's minutes nor the reporter's transcript indicates any verdict had been dated and signed prior to the subject instruction having been withdrawn.

Second, if verdicts had been reached prior to the withdrawal of the subject instruction appellant has not demonstrated prejudice.   If the jury-before the instruction withdrawal-had agreed upon a guilty verdict (on count II, misdemeanor assault) then the instruction withdrawal was without significance.   Only if the jury-before the instruction withdrawal-had agreed upon a not guilty verdict could the withdrawal have been prejudicial.   Appellant made no such claim in the trial court,3 makes none here, and all the circumstances suggest the contrary.   It stretches credulity to imagine the jury could have reached a not guilty verdict and then, fourteen minutes after being instructed to disregard the subject instruction, arrived at a guilty verdict.

Appellant also argues the instruction withdrawal violated the procedural requirements of section 1093.5.4  He is mistaken.

As required by section 1093.5, the trial court, prior to argument, “advise[d] counsel of all instructions to be given.”   Only during jury deliberations, when it become increasingly apparent from the jury's questions, that they were confused, understandably, by the subject instruction did the court resolve their questions by withdrawing the confusing and inapplicable instruction.   In doing so, the trial court acted properly. (§ 1138;  People v. Beardslee (1991) 53 Cal.3d 68, 97, 279 Cal.Rptr. 276, 806 P.2d 1311 [“The court has a primary duty to help the jury understand the legal principles it is asked to apply․  [A] court must do more than figuratively throw up its hands and tell the jury it cannot help.”];  People v. Frye (1992) 7 Cal.App.4th 1148, 1159, 10 Cal.Rptr.2d 217 [“In instructing a jury it is proper for a trial court to explain and define terms which might otherwise lead to confusion.”];  People v. De La Roi (1944) 23 Cal.2d 692, 701, 146 P.2d 225 [“The jury had the right to send out a communication to the court at any time it saw fit and it had the right to have testimony read or further instructions given.”];  People v. Haskett (1990) 52 Cal.3d 210, 232, 276 Cal.Rptr. 80, 801 P.2d 323[“[W]e should defer to the [trial] court's analysis of the jury's requests․   The trial court, after all, is in a better position than an appellate court to interpret the tone and nuances of the problems in the jury room.   Having presided over the trial, the judge appreciates the full context in which the jury's questions are posed.”].)

Further, contrary to appellant's claim, just as in People v. Bishop (1996) 44 Cal.App.4th 220, 51 Cal.Rptr.2d 629, the instruction was extraneous to appellant's defense and defense counsel rejected the trial court's offer to reopen argument.  (Id. at p. 235, 51 Cal.Rptr.2d 629.)

We find no prejudicial error.


The judgment is affirmed.


1.   Fourteen witnesses testified at trial but only five were percipient to the alleged offense.   Several were defense character witnesses and one, John Ruffin, was an uncharged victim of a 1989 battery by appellant when, as coach of the Compton High School basketball team, he punched John Ruffin, a player, into unconsciousness.

2.   The section reads:  “Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess.   A teacher, vice principal, principal, or any other certified employee of a school district, shall not be subject to criminal prosecution or criminal penalties for the exercise, during the performance of his duties, of the same degree of physical control over a pupil that a parent would be legally privileged to exercise but which in no event shall exceed the amount of physical control reasonably necessary to maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning.   The provisions of this section are in addition to and do not supersede to the provisions of Section 49000.”Education Code section 49000 reads:  “The Legislature finds and declares that the protection against corporal punishment, which extends to other citizens in other walks of life, should include children while they are under the control of the public schools.   Children of school are at the most vulnerable and impressionable period of their lives and it is wholly reasonable that the safeguards to the integrity and sanctity of their bodies should be, at this tender age, at least equal to that afforded to other citizens.”

3.   The jury was not asked whether they had reached a verdict before the instruction withdrawal, no juror affidavit was submitted to the trial court, and no motion for a new trial was made.

4.   The section reads:  “In any criminal case which is being tried before the court with a jury, all requests for instructions on points of law must be made to the court and all proposed instructions must be delivered to the court before commencement of argument.   Before the commencement of the argument, the court, on request of counsel, must:  (1) decide whether to give, refuse, or modify the proposed instructions;  (2) decide which instructions shall be given in addition to those proposed, if any;  and (3) advise counsel of all instructions to be given.   However, if, during the argument, issues are raised which have not been covered by instructions given or refused, the court may, on request of counsel, give additional instructions on the subject matter thereof.”

FRED WOODS, Associate Justice.

LILLIE, P.J., and NEAL, J., concur.