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

The PEOPLE, Plaintiff and Respondent, v. Jay BLACK, Defendant and Appellant.

No. B072600.

Decided: March 17, 1994

Lawrence C. Hersh, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Greg Stevens. John Martin Gallagher, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Jay Black, aka Nathaniel Jackson. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., and Scott Wm. Davenport, Deputy Atty. Gen., for plaintiff and respondent.

Greg Stevens and Jay Black, aka Nathaniel Jackson, (Black) appeal from judgments entered following a jury trial in which they were convicted of second degree commercial burglary (Pen.Code, § 459) and Stevens was found guilty of inflicting injury to a police dog.  (Pen.Code, § 600, subd. (a).)  The court found that Black had suffered two prior convictions within the meaning of Penal Code section 667.5.

Appellant Stevens urges prejudicial instructional error, and Black contends that the trial court committed sentencing errors.


On July 9, 1992, at approximately 1:50 a.m., in response to a call regarding a burglary, Deputy Frank Bravo drove his patrol car to Saint Malachy's church and school at the intersection of Naomi and 81st Street.   He saw Black and Stevens running in the church courtyard and a microwave oven, a television and VCR tapes on the church lawn.

Shortly thereafter, a helicopter, using a heat tracking device, detected heat emitting from a trailer.   Bravo and a K–9 unit (a police dog and its handler) went to the trailer.   Black was found near the trailer in some brush trying to hide.   As he was arrested, he stated, “We did it just to get something to sell so that we could get food.”

Thereafter, Deputy Brian Jennings, assigned to the K–9 group, announced to Stevens, who was hiding under the trailer, that he should come out or the dog would be sent in;  and if the dog got to him, he would bite.1  In addition to this announcement, similar announcements had been made earlier using a radio car public address system and the helicopter public address system.

When Stevens did not come out, the police dog was sent in underneath the trailer.   The area was illuminated with flashlights and Bravo saw the dog approach Stevens.   As the dog got closer, Stevens jabbed at the dog's head with a large stick.   The dog was hit several times in the face and was ordered back out.   After threatening to send the dog back under the trailer, Stevens came out from under the trailer brandishing a long wooden stick.   Bravo kicked the stick out of Stevens's hand, kicked him in the back of the legs forcing him to the ground and then handcuffed him.   As Bravo was handcuffing Stevens, Stevens said, “I did it.   I did it.   I'll tell you anything;  just don't get that dog near me again.”   The dog suffered a broken left front tooth from being hit but did not require dental treatment.



The jury was instructed relative to count 2 that Stevens was “charged with the violation of Sec. 600 of the Penal Code, willful and malicious striking of a police dog in the performance of his duties.   In order to convict the defendant, each of the following elements:  [sic ] 1.   The victim was a police dog.   2.  The police dog was in the performance of his duties.   3.  The defendant hit the police dog while the dog was engaged in the performance of his duties.   4.  Defendant hit the dog with such force it was capable of producing injury and likely to produce injury.   5.  Defendant acted without legal justification.   6.  Defendant acted willfully and maliciously.” 2

Stevens contends that the jury instruction did not correctly inform the jury as to the elements of the crime because it failed to define the term “legal justification.”   This contention is well taken.

“It is firmly established that ‘the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’   [Citations.]  A ‘defendant has a constitutional right to have the jury determine every material issue presented by the evidence.’  [Citations.]  [¶] ‘[E]ven in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial․’  [¶] Additionally, the trial court has a sua sponte duty to give explanatory instructions even in the absence of a request when the terms in an instruction ‘have a “technical meaning peculiar to the law.” ’   [Citations.]  No such duty is imposed when the terms ‘are commonly understood by those familiar with the English language․’  [Citation.]”  (People v. Valenzuela (1985) 175 Cal.App.3d 381, 392–393, 222 Cal.Rptr. 405, emphasis in original;  See People v. Cummings (1993) 4 Cal.4th 1233, 1311, 18 Cal.Rptr.2d 796, 850 P.2d 1;  People v. Howard (1988) 44 Cal.3d 375, 408, 243 Cal.Rptr. 842, 749 P.2d 279.)

 Here the jury was instructed with a specially drafted instruction which stated that in order to convict the defendant of a violation of Penal Code section 600, the jury had to find among other things that in hitting the dog, the defendant acted without legal justification.  “Legal justification” has a technical meaning peculiar to the law, but the jury was not instructed regarding what constituted legal justification in the context of this crime.   For example, justification declares the allegedly criminal act to be legal and requires an objective evaluation of the allegedly criminal act.   (People v. Aris (1989) 215 Cal.App.3d 1178, 1196, 264 Cal.Rptr. 167.)   Justification “presupposes conduct which would otherwise constitute a breach of duty but permits the actor to escape liability by establishing that his conduct was warranted under the circumstances.”  (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 347, 13 Cal.Rptr.2d 819.)   Justification is exemplified by the concept of self-defense but “may be raised in other forms depending upon the circumstances of a particular case.”  (People v. Frye (1992) 7 Cal.App.4th 1148, 1155, fn. 2, 10 Cal.Rptr.2d 217.)   Here, the jury was required to be instructed in the context of this crime under what circumstances the defendant could escape liability.

 An arrestee may use reasonable force to defend against excessive force.   A person who knows that he is being arrested by a peace officer, or with the exercise of reasonable care should know, has a duty to refrain from using force or any weapon to resist such arrest.  (Pen.Code, § 834a.)   The person being arrested may be subjected to such restraint as is reasonable for his arrest and detention.  (Pen.Code, § 835.)   The peace officer making the arrest may use reasonable force to make the arrest, to prevent escape or to overcome resistance.  (Pen.Code, § 835a.)

“Under Penal Code sections 835 and 835a, an officer may lawfully use only reasonable force to make an arrest or to overcome resistance.  [Penal Code] [s]ections 692 and 6933 set forth the basic privilege one has to defend against unlawful force․  [I]t is now the law of California that a person may not use force to resist any arrest, lawful or unlawful, except that he may use reasonable force to defend life and limb against excessive force․”  (People v. Curtis (1969) 70 Cal.2d 347, 356–357, 74 Cal.Rptr. 713, 450 P.2d 33, emphasis in original;  People v. Kelley (1969) 3 Cal.App.3d 146, 151–152, 83 Cal.Rptr. 287;  see also Soto v. City of Sacramento (1983) 567 F.Supp. 662, 671–672, that a plaintiff stated a cause of action under 42 United States Code section 1983 by alleging police used excessive force in arresting him when they let him be bitten by a police dog.)

Here “without legal justification” was an element of the offense.   Additionally, there was evidence to support the theory of justification and we cannot conclude beyond a reasonable doubt that the jury's verdict was not affected by the erroneous instruction.  (See Pope v. Illinois (1987) 481 U.S. 497, 502 [107 S.Ct. 1918, 1921–22, 95 L.Ed.2d 439, 446];  Rose v. Clark (1986) 478 U.S. 570, 578–579 [106 S.Ct. 3101, 3106, 92 L.Ed.2d 460, 471].)   Under these circumstances, the conviction must be reversed.  (See People v. Cummings, supra, 4 Cal.4th at pp. 1314–1315, 18 Cal.Rptr.2d 796, 850 P.2d 1).4

 Stevens next contends the trial court erred in failing to instruct the jury sua sponte with CALJIC 2.22 5 in that the evidence at trial indicated conflicting testimony as to what the suspects were wearing.   Deputy Robert A. Lopez testified that when he arrived at the church grounds, he saw two suspects in the church yard both wearing shirts.   Deputy Paul Gendron testified that he saw the suspects running, and one was wearing blue jeans and a black shirt and the other had on blue jeans and no shirt.   Deputy Bravo testified that Stevens was not wearing a shirt when he was arrested but had a shirt tied around his waist.   In his experience as a deputy sheriff, it was not unusual for criminals to remove clothing while fleeing from a crime in an attempt to confuse witnesses and or police officers.

Viewing the evidence in the light most favorable to the judgment, the evidence suggests that Stevens was originally wearing a shirt and later while fleeing took it off in an attempt to confuse witnesses.   There was no error in failing to instruct the jury sua sponte on weighing of conflicting testimony pursuant to CALJIC 2.22.


At the time of sentencing, the court stated it had read, considered and signed each of the probation reports and that Black had “been found guilty of second degree burglary, two prior felonies for state prison were found true.”   The court noted that:  “Starting in 1977 he had a burglary;  1978, sodomy;  1983, attempted grand theft;  1983, attempted grand theft;  1985, rape by force or fear, convicted of kidnapping and rape by force or fear.  [¶] Then in 1991 he had a 211 deferred for revocation of parole.  [¶] So the court believes that without reference to the two priors—and also, as a juvenile, rape by force;  petty theft.  [¶] His record is extremely serious, continuing pattern of behavior.  [¶] I don't remember a violating [sic ] the law while on probation or parole.”

The court denied probation finding Black had a “terrible, terrible performance on probation” and selected the high term of three years, finding the factors in aggravation clearly outweighed those in mitigation.   The court enhanced Black's sentence two years pursuant to Penal Code section 667.5, subdivision (b), one year for the kidnapping conviction and one year for the forcible rape, for a total of five years.

The probation report stated that Black should be sentenced for the maximum period of time to insure the safety of the community;  his prior record both as a juvenile and adult showed prior felony convictions for which he served prison time and a pattern of crimes involving sex crimes and crimes against property;  he was a great and potential source of danger to the community.   As sentencing considerations, the probation officer noted that Black was ineligible for probation pursuant to Penal Code section 1203, subdivision (e), and listed as aggravating factors that:  “1.   The planning, sophistication or professionalism with which the crime was carried out, or other facts, indicated premeditation.6  2.   He has engaged in a pattern of violent conduct which indicates a serious danger to society.   3.  The defendant's prior convictions as an adult or adjudications of commission of crimes as a juvenile are numerous or of increasing seriousness.   4.  The defendant was on probation or parole when he committed the crime.   5.  The defendant's prior performance on probation or parole was unsatisfactory.”   No factors were listed in mitigation.

 Black's contention that the matter requires remand for resentencing is rejected.   While the record indicates that the court may have believed that Black was convicted of each of the prior crimes for which he was charged, which are listed in the probation report, rather than the convictions listed thereafter, the record indicates sufficient reasons for imposing the upper term.   The record indicates that Black has engaged in violent conduct which indicates he is a serious danger to society;  his prior convictions as an adult and sustained petitions as a juvenile are numerous and of increasing seriousness;  and his prior performance on probation or parole was unsatisfactory.  (See Cal.Rules of Court, rule 421, subds. (b)(1), (2), (4) and (5).)   Even assuming that certain factors were erroneously relied upon by the trial court for imposing the upper term, the sentence was correct.   It is well settled that the upper term may be imposed based upon a single valid factor.  (See People v. Dreas (1984) 153 Cal.App.3d 623, 636, 200 Cal.Rptr. 586.)

 Additionally, apart from the fact that Black was ineligible for probation pursuant to Penal Code section 1203, subdivision (e)(4), “ ‘[a]n adequate statement of reasons for imposing the aggravated term implicitly includes reasons for denying probation.  [Citations.]’ ”  (People v. Howington (1991) 233 Cal.App.3d 1052, 1060, 284 Cal.Rptr. 883.)   Moreover, the same factor may be used to deny probation and enhance punishment.  (People v. Bowen (1992) 11 Cal.App.4th 102, 106, 14 Cal.Rptr.2d 40.)


Stevens's conviction for violating Penal Code section 600 is reversed.   In all other respects the judgments are affirmed.

We concur:


1.   The dog was trained to bite when he found his suspect.

2.   Penal Code section 600, subdivision (a), provides in pertinent part:  “Any person who willfully and maliciously and with no legal justification strikes, beats, kicks ․ any dog under the supervision of, any peace officer in the discharge or attempted discharge of his or her duties, is guilty of a public offense․”

3.   Penal Code section 692 provides, “Lawful resistance to the commission of a public offense may be made.”  Penal Code section 693 provides, “Resistance sufficient to prevent the offense may be made by the party about to be injured:  1.   To prevent an offense against his person, or his family, or some member thereof.   2.  To prevent an illegal attempt by force to take or injure property in his lawful possession.”

4.   Stevens's remaining claims of instructional error with reference to this count are moot in view of our disposition.   Additionally, it is presumed that upon retrial the instruction will be carefully drafted to conform to the elements as provided in the statute.

5.   CALJIC 2.22 provides:  “You are not bound to decide an issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which appeals to your mind with more convincing force.   You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other.   You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides].   The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence.”

6.   The court struck this factor as it was not applicable.

LILLIE, Presiding Justice.

JOHNSON and FRED WOODS, JJ., concur.