APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Judge. (Super. Ct. No. SF013823A).
The opinion of the court was delivered by: Gomes, J.
CERTIFIED FOR PUBLICATION
A jury found Mario Gutierrez guilty of battery against a custodial officer at the Lerdo Detention Facility in Kern County. (Pen. Code, § 243.1; see Pen. Code, § 831, subd. (a).)*fn1 The trial court found four allegations of serious felony priors (§§ 667, subd. (a)(1), 1192.7, subd. (c)) true within the scope of the three strikes law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) and imposed a 25-to-life term consecutive to a term of 25-to-life-plus-one-year already imposed in another case. On appeal, he argues an insufficiency of the evidence issue, two interrelated instructional issues, and a sentencing issue. We affirm the judgment.
1. Sufficiency of the Evidence
Gutierrez argues that an insufficiency of the evidence of necessary, not excessive, force by the detention deputy is in the record. The Attorney General argues the contrary.
Before discussing the law, we turn to the record. On the morning of March 22, 2007, Robin Norton, a detention deputy, used the public address system to tell Gutierrez his time in the recreation yard was up. After communicating by radio with Troy Kresha, a detention deputy on the other end of the sally port, Norton opened the door on her side of the sally port and followed Gutierrez toward the door on the other side of the sally port. As ordered, Gutierrez walked with his hands behind his back.
Kresha opened the door on his side of the sally port to let Gutierrez go back to his cell. As he walked out of the sally port, Gutierrez turned in the wrong direction. In a conversational tone, Kresha told him he needed to go back to his cell. Gutierrez stopped, raised both fists into the air, and said, ―No.‖ He bolted and ran, not toward his cell, but toward the receiving area.
Kresha's job was to secure inmates, so he followed Gutierrez and told him to stop and put his hands behind his back. Disobeying him, Gutierrez pushed on the receiving door leading to the garage, trying to get out. Had Gutierrez been there at the right time, he probably could have caught an officer going through there. That was a security issue. From a distance of three to four feet, Kresha fired a couple of two-second bursts of pepper spray.
Gutierrez turned on Kresha, throwing punches with both fists. Kresha started backpedaling. He fired another burst of pepper spray. Gutierrez kept advancing on him and kept throwing punches at him. Kresha kept backpedaling until he hit the end of the hallway where a door opens to a wider hallway leading into the receiving area. For officer safety, he felt his duty was to ―stand there and defend that area‖ as the ―last defense‖ to keep Gutierrez away from scissors and other items he could use as weapons.
Gutierrez kept advancing on Kresha, who fired another burst of pepper spray, again with no effect. Dropping the pepper spray from his right hand and the keys from his left hand, Kresha started throwing punches back. Neither he nor Gutierrez made contact with each other until a punch from Gutierrez broke his nose. He had blood in his eyes, could not see, and backed up again, just as other officers arrived. Apart from the effect, if any, of the pepper spray, he caused Gutierrez no physical harm.
Gutierrez argues that he did nothing more than push ineffectually on a locked door Kresha knew could not be opened, that he could not gain access to any other portion of the jail without coming back the way he came, and that Kresha used pepper spray before Gutierrez threatened or assaulted him. He argues, too, that other officers were close enough to arrive within moments to assist in gaining his compliance and that Kresha did not give him sufficient time to obey the order to stop and put his hands behind his back.
Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidence -- credible and reasonable evidence of solid value -- that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Prince (2007) 40 Cal.4th 1179, 1251.) In doing so, we presume in support of the judgment the existence of every fact a reasonable trier of fact could reasonably deduce from the evidence. (Prince, supra, 40 Cal.4th at p. 1251.) The same standard of review applies to circumstantial evidence and direct evidence alike. (Ibid.)
From the evidence in the record, a reasonable trier of fact could reasonably infer that Kresha used necessary, not excessive, force to discharge his duty to secure inmates. Likewise, a reasonable trier of fact could reasonably make inferences contrary to all of those Gutierrez argues. Before a reviewing court can reverse the judgment for insufficiency of the evidence, ―it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.‖ (People v. Redmond (1969) 71 Cal.2d 745, 755.) That is not the state of the record here. Gutierrez's insufficiency of the evidence argument simply asks us to reweigh the facts. (People v. Bolin (1998) 18 Cal.4th 297, 331-333.) That we cannot do.
Gutierrez argues that the trial court not only denied him his due process and jury trial rights by failing to instruct sua sponte on self-defense but also impermissibly lightened the burden of proof by giving CALCRIM No. 2671, which he says improperly implies that a person generally cannot use any force in response to an officer's use of excessive force. The Attorney General argues that Gutierrez forfeited his right to appellate review of both the self-defense issue (by failing to request a self-defense instruction) and the CALCRIM No. 2671 issue (by failing to object to the instruction), that the ...