Filed 4/29/22 P. v. McDonald CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, A161413
Plaintiff and Respondent,
v.
CALVIN BENNETT McDONALD III, (Napa County
Super. Ct. No. 20CR000524)
Defendant and Appellant.
Calvin Bennett McDonald III contends that his conviction
for three counts of resisting an executive officer (Pen. Code, § 69)
must be reversed because the trial court erroneously omitted an
instruction on an element of the offense and provided an incorrect
response to a jury question. Because we conclude his contentions
lack merit, we affirm.
BACKGROUND
McDonald’s conviction stems from the aftermath of an
altercation he had with a fellow patient at Napa State Hospital.
McDonald punched the other patient in the face, knocking him
unconscious. McDonald cooperated with hospital police officers
who escorted him to the seclusion room, and he sat down on the
bed there when told to do so. An officer closed and locked the
door to the room, leaving McDonald alone inside.
Several police officers subsequently entered the room after
McDonald did not comply with an order to lay down on the bed.
1
McDonald backed into a corner on the farthest wall from the door
to the room, and put up his fists (or open hands—the point is
disputed). He said he had the right to defend himself. The
officers grabbed McDonald by his arms, pushed him down onto
the bed, applied pain compliance techniques, and handcuffed
him. Once the officers had restrained McDonald, the staff tied
him to the bed using five-point restraints and administered
medication intended to calm him down.
At trial, the prosecution argued that the officers reasonably
went into the seclusion room and gained control of McDonald to
ensure the staff could safely provide medication or apply five-
point restraints. Some officers testified that the staff had told
them before they went into the room that McDonald was going to
be placed in five-point restraints, and the officers had gone into
the room to grab McDonald so that the staff could safely place
him in restraints. Officers also testified more generally that they
intervened to ensure staff safety. Once the officers went into the
room, McDonald adopted a fighting stance, and some of the
officers felt they were in imminent danger of being assaulted.
After the officers grabbed him, McDonald attempted to pull his
arms away and free himself from the officers’ holds.
The defense argued that the police officers were acting
unlawfully because they unreasonably used force against
McDonald, and he was therefore justified in resisting them. The
officers were allowed to use force if a patient poses a risk to
himself or others; or they could use force to effect an arrest,
prevent escape, or overcome resistance. The staff were only
allowed to apply five point-restraints when a patient is currently
displaying violent or aggressive tendencies. When the officers
entered the room, McDonald was not threatening to harm himself
or anyone else, nor was he trying to escape the room; neither was
he being placed under arrest. The officers were shouting
conflicting commands at McDonald, and he stood up from the bed
to comply with one of those commands. McDonald did not
2
advance on the officers; instead, the officers put their hands on
him first. Any force McDonald used was to protect himself from
being harmed by the officers. Before the staff used the five point
restraints, no one told McDonald that he needed to take
medication or asked him if he was willing to take the medication
without the need for restraints.
DISCUSSION
A.
McDonald contends that the trial court erred by failing to
instruct the jury on an essential element of the crime of resisting
an executive officer (Pen. Code, § 69). Reviewing this claim of
instructional error independently (People v. Waidla (2000) 22
Cal.4th 690, 733), we conclude McDonald has failed to establish
prejudicial error.
1.
The trial court instructed the jury about the elements
required for a conviction under section 69, explaining that
the People must prove that:
1. The defendant unlawfully used force or
violence to resist an executive officer;
2. When the defendant acted, the officer was
performing his lawful duty; [and]
3. When the defendant acted, he knew the
executive officer was performing his duty.
(See also CALCRIM No. 2652.) The court further instructed that
a “police officer with the Napa State Hospital Police Department
is a peace officer,” which is a type of “executive officer.” In
addition:
A peace officer is not lawfully performing his
or her duties if he or she is unlawfully
arresting or detaining someone or using
unreasonable or excessive force in his or her
duties. . . .
3
The duties of a peace officer include
investigating crimes and enforcing laws,
assuring the safety and protection of Napa
State Hospital patients and staff members.
Finally, the court instructed the jury with a modified
version of CALCRIM No. 2670, as follows:
[T]he People have the burden of proving
beyond a reasonable doubt that the officer was
lawfully performing his duties as a peace
officer. If the People have not met this burden,
you must find the defendant not guilty of the
particular charge.
A peace officer is not lawfully performing his
or her duties if he or she is unlawfully
arresting or detaining someone or using
unreasonable or excessive force in his or her
duties.
Special rules control the use of force.
If a peace officer uses unreasonable or
excessive force, that person may unlawfully
use reasonable force to defend himself or
herself.
2.
McDonald contends that the trial court violated his due
process rights in failing to give a portion of the CALCRIM No.
2670 pattern instruction that reads: “ ‘A peace officer may use
reasonable force to arrest or detain someone, to prevent escape,
to overcome resistance, or in self-defense.’ ”
It is unclear to us why the proffered instruction was
necessary. The question both parties presented to the jury was
whether or not the officers unlawfully used force when they went
into the seclusion room and grabbed McDonald. The answer to
this question turned on the jury’s weighing of the evidence on the
extent to which McDonald posed a safety risk at the time the
officers grabbed him. The proffered instruction does not address
4
this issue. In fact, by suggesting that the officers may only use
reasonable force for other reasons, it may have confused the jury.
McDonald suggests that the instruction was necessary for
the jury to decide whether the police lawfully performed their
duties when they “detained” him. But the court instructed the
jury (twice) that, “A peace officer is not lawfully performing his or
her duties if he or she is unlawfully arresting or detaining
someone.” The omitted instruction adds nothing material.
In any case, even assuming the court should have provided
better instructions, it is clear beyond a reasonable doubt that any
error did not contribute to the jury’s verdict. (See People v.
Gonzalez (2012) 54 Cal.4th 643, 663.) As explained, the court
instructed the jury that peace officers are not lawfully performing
their duties if they “us[e] unreasonable or excessive force in
[their] duties.” It also instructed the jury that a “peace officer is
not lawfully performing his or her duties if he or she is
unlawfully . . . detaining someone.” The court further instructed
the jury that Napa State Hospital police officers’ duties included
“assuring the safety and protection of Napa State Hospital
patients and staff members.” Based on these instructions, the
jury would have understood that the officers were not
“performing a lawful duty” (Pen. Code, § 69) in the absence of a
safety risk or other justification for detaining McDonald or using
force. (See People v. Bolin (1998) 18 Cal.4th 297, 328 [“ ‘ “The
absence of an essential element in one instruction may be
supplied by another or cured in light of the instructions as a
whole.” ’ ”]; People v. Kumar (2019) 39 Cal.App.5th 557, 564
(Kumar) [“ ‘Jurors are presumed able to understand and correlate
instructions and are further presumed to have followed the
court's instructions.’ ”].)
The attorneys’ arguments further clarified the issue for the
jury. (See People v. Wilkins (2013) 56 Cal.4th 333, 351
[instructional error may be harmless when arguments by counsel
clarify the issue]; see also Kumar, supra, 39 Cal.App.5th at p.
5
567.) There was no dispute at trial regarding the general
circumstances in which a peace officer may use reasonable force.
Both parties agreed that the hospital police officers could lawfully
act to protect their own safety or the safety of others, and the
disagreement was over whether it was reasonable for the officers
to believe that McDonald posed such a threat based on the
circumstances. In his closing argument, defense counsel
acknowledged that peace officers may use force “to effect an
arrest, to overcome physical resistance, to protect the officer’s
safety, or the safety of others.” He focused on the question
whether the officers’ actions were necessary to ensure safety,
pointing to testimony that the officers “were not allowed to touch
patients unless it’s a safety concern.” Defense counsel argued
that the officers’ actions were unlawful because McDonald did not
pose an imminent threat or safety concern at the time that the
officers grabbed him. The People, in turn, argued to the jury that
the officers were concerned about safety and that they reasonably
acted to gain control of a patient who had just assaulted someone.
Given the jury instructions as a whole, as well as counsels’
arguments on whether safety concerns justified the officers’
actions, the jury could not have misunderstood the issue.
B.
McDonald contends that the trial court erred in responding
to a question posed by the jury during deliberations. (See People
v. Gonzalez (1990) 51 Cal.3d 1179, 1212 [Section 1138 imposes a
duty on the trial court to provide a deliberating jury with
requested information on questions of law].) We conclude that
McDonald waived the argument by agreeing with the court’s
proposed response.
During deliberations, the jury asked the court: “If we find
that the hospital staff was unlawful in placing McDonald in 5
point restraints does that mean the officers were in the unlawful
performance of their duties when they restrained Mr.
McDonald?”
6
Before responding, the court sought input from the parties.
Defense counsel asserted that the question indicated the jury was
struggling with the lawful performance element and renewed his
request that the court instruct the jury with the omitted
language from CALCRIM No. 2670, explaining when peace
officers may use force. However, the court rejected that
approach, stating that the court did not think that instruction
was applicable to state hospital police officers. Both parties
agreed that, even if the staff’s decision to place McDonald in five
point restraints was incorrect, it did not necessarily mean that
the officers’ performance of their duties were unlawful. The court
then stated:
I think the easiest way to answer this, and
[defense counsel] probably won’t be happy
with this, . . . because it’s talking about the
lawfulness of the five-point restraint. It is
not an issue whether it was lawful or
unlawful. So maybe that’s how I answer it,
the lawfulness of the five-point restraints is
irrelevant. . . .
[¶] . . . [¶]
I would feel most comfortable just letting
them know the lawfulness of the restraint
is not relevant, it’s not before them.
Defense counsel then responded:
I think that is correct. If they’re dealing
with - - if the[y’re] not struggling with the
officers entering the room to do what they
did, and they’re literally just struggling
with whether the five-point is legal, then
they’re in the wrong place. And I think
that’s right to tell them you’re focused on
the wrong spot.
7
Accordingly, the court told the jury: “The lawfulness of the 5
[point] restraints is irrelevant and not before you to decide.”
To the extent the court incorrectly informed the jury that
the lawfulness of the five-point restraints was irrelevant,
McDonald has waived any contention of error. (See, e.g., People
v. Bohana (2000) 84 Cal.App.4th 360, 373 [“Where, as here,
appellant consents to the trial court’s response to jury questions
during deliberations, any claim of error with respect thereto is
waived.”].)1
DISPOSITION
The judgment is affirmed.
Because one of the two errors asserted by McDonald has
1
been waived, we need not consider his claim of cumulative error.
8
_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
NEEDHAM, J.
A161413
9