TRIAL JUDGE: Honorable Robert Perry TRIAL COURT: Alameda County Superior Court (Trial held at Los Angeles County Superior Court by change of venue order.) (Alameda County Super. Ct. No. 161210)
The opinion of the court was delivered by: Marchiano, P.J.
CERTIFIED FOR PUBLICATION
Defendant Johannes Mehserle served as a police officer for the Bay Area Rapid Transit District (BART). Shortly after 2:00 a.m. on January 1, 2009, while responding to a report of a fight on a BART train, he shot and killed BART passenger Oscar Grant during a tense confrontation. Defendant was attempting to arrest and handcuff Grant for misdemeanor obstructing a police officer (Pen. Code, § 148), while Grant was lying face down on the BART platform. Defendant shot Grant, who was unarmed, in the back. Defendant contended he meant to pull his taser and shock Grant to subdue him, but accidentally drew his handgun by mistake and fired the fatal shot.
After a trial involving many witnesses, the jury found defendant not guilty of murder or voluntary manslaughter. The jury convicted defendant of involuntary manslaughter (Pen. Code, § 192, subdivision (b)), thus necessarily finding the shooting was not accidental, but criminally negligent. The trial court sentenced him to two years in prison. Defendant raises several contentions on appeal, including the evidence was insufficient regarding criminal negligence to support an involuntary manslaughter conviction, the jury was improperly instructed, the trial court erred by not granting a new trial due to newly discovered evidence, and the trial court erred by denying probation. We disagree with defendant's contentions and affirm the judgment of conviction. We first examine the facts in detail and then review the issues.
The People charged defendant with the murder of Oscar Grant (Pen. Code, § 187, subd. (a)).*fn1 They also alleged three firearm enhancements: personally and intentionally discharging a firearm causing great bodily injury and death (§§ 12022.7, subd. (a), 12022.53, subd. (d)); personally and intentionally discharging a firearm (§ 12022.53, subd. (c)); and personally using a firearm (§§ 12022.5, subd. (a); 12022.53, subd. (b)).
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
A proper understanding of the events surrounding the shooting requires at the outset a description of the weapons defendant was carrying that night and how they were holstered.
Defendant carried two weapons: a black model 226 40-caliber Sig Sauer handgun and a bright yellow Taser International X26 taser. The handgun weighed more than three times as much as the taser. The handgun had no manual safety switch, while the taser had a safety switch that also functioned as an on/off switch. The taser had a red laser sight; the handgun did not.
Defendant's handgun was holstered on his right side, called the dominant side―presumably because defendant is right-handed. The taser was holstered on defendant's left, or nondominant, side, in a cross-draw configuration for use with the dominant (right) hand. The handgun holster had an automatic locking system, requiring a two-step process to remove the weapon: first, a rotating hood must be pressed down and rotated forward; second, a safety latch must be pushed back to release the weapon from its holster. The taser holster had a safety strap and a safety hood.
B. The Shooting on the BART Platform
The facts of the shooting are taken not only from witness testimony, but a BART platform surveillance video and cell phone videos taken by five BART passengers. All of the videos were admitted into evidence.
In the small hours of the early morning of New Year's Day 2009, Grant boarded a BART train in San Francisco with his fiancee, Sophina Mesa, and several other friends. The group was bound for the Fruitvale BART station. The train was very crowded with New Year's Eve celebrants, and people were standing in the aisles.
As the train approached the Fruitvale BART station in Oakland, Grant began to argue with a fellow passenger and the two men started "tussling around." They attempted to strike each other, but the train was so crowded they were reduced to pushing and shoving. The aggression spread into a large fist fight, involving at least 10 men.
Passengers used the train intercom to report the fight to the operator, who in turn contacted BART central control. Central control apparently contacted BART police, whose dispatcher contacted officers in the field with a report of a fight at the Fruitvale BART station in the train's "lead car, no weapons, all black clothing, large group of B[lack] M[ales]."
The train reached the Fruitvale station and stopped at the platform. The train doors opened. The fight stopped. BART Police officers Anthony Pirone and Marysol Domenici were on the street level of the station.*fn2 Pirone went up to the platform and saw five African-American men, including Grant and Michael Greer, and one woman standing on the platform by the lead car and talking. As Pirone approached, Grant and Greer got back on the train. According to a bystander, Pirone appeared to be agitated and said, "This train isn't fucking going anywhere, I'm not stupid, I see you guys."
Pirone ordered the three men who remained on the platform, who apparently were Jackie Bryson, Nigel Bryson and Carlos Reyes, to stand against the platform wall and keep their hands visible. He pulled his taser and pointed it at the men as he ordered them to the wall. Pirone called Domenici and told her to come up to the platform, where he instructed her to watch the detained men against the wall.
Pirone ordered Grant off the train. By one account he said, "Get off the fucking train, otherwise I'm going to pull you out." By another account he said, "Get off the train motherfuckers." By his own account, Pirone said, "Get the fuck off the train." Grant got off the train. Pirone took Grant over to the three detainees and shoved him against the wall. The men sat down after being ordered to do so by Domenici.
Pirone went back to the train for Greer and ordered him out, saying "Get the fuck off my train." Pirone denied using profanity when he ordered Greer off the train, because of the presence of female passengers. Greer did not comply. Pirone said, "I've asked you politely. I'm going to have to remove you in front of all these people now." Pirone grabbed Greer by his hair and the scruff of his neck and forced him off the train. Train passengers described Pirone as hostile, angry, mean, and aggressive. One passenger said Pirone acted "like a punk." Defendant concedes Pirone was "verbally and physically abusive in his attempt to remove both Greer and Grant from the train."
According to Pirone, Greer struggled to break free once the two were on the platform. Pirone, therefore, pushed Greer and knocked him off balance. Pirone said Greer spun around and raised his fists, so Pirone used a takedown maneuver and swept Greer's legs out from under him, knocking him to the ground. Pirone handcuffed Greer. Several passengers testified that in their opinion Pirone used excessive or unnecessary force, or that his behavior was excessive.
Grant, Jackie Bryson, and Reyes jumped to their feet and shouted, "This is fucked up, this is fucked up." Domenici told them to "stay out of it." The three continued to yell at Pirone to stop what he was doing. Pirone approached Reyes and told him to "shut the fuck up." A cell phone video taken by a passenger shows Pirone striking Grant with his fist. There was testimony that Pirone shoved Grant against the wall. Pirone forced Grant to his knees. A passenger's video shows Pirone drawing his taser and pointing it at the detainees. Grant pleaded with Pirone not to tase him because "I have a daughter." Domenici drew her taser and pointed it at the seated detainees, who kept their hands up and kept saying "don't tase me."
According to a BART surveillance video, defendant and his partner, Officer Woffinden, arrived on the platform at 2:08:27 a.m. Defendant ordered the men who were approaching Domenici to "get back." Defendant drew his taser and pointed it at the detainees, including Grant. The taser's red laser sight was trained on Grant's chest and groin. Woffinden drew his baton and ordered four or five people away from the detention area. At 2:09:24, Officer Guerra joined defendant to help guard the detainees.
Grant answered a call from his fiancee Mesa, who was on the street level, and said, "They're beating us up for no reason. I'm going to call you back." Mesa thought he sounded scared.*fn3
Referring to Grant, Pirone said, "that motherfucker is going to jail" for "148," a reference to Penal Code section 148, resisting a police officer. Pirone testified he gave the order to arrest Grant and Greer. Defendant thought Pirone told him to arrest Grant and Jackie Bryson. Pursuant to BART policy, Officers Pirone and Domenici were the officers in charge because they had been the first on the scene.
When he heard he was going to be arrested, Grant stood up and asked, "Who can we talk to?" A cell phone video shows Pirone grabbing Grant and forcing him back down. Defendant admitted he put his hand on Grant's head to help force him back down.
Jackie Bryson stood up. Defendant pushed Bryson back down into a seated position. He then pointed his taser at Bryson and told him he needed to start listening or he was going to get tased. Bryson replied there wouldn't be any problems. Defendant handcuffed Bryson without incident.
At this point, three officers―defendant, Pirone, and Guerra―were dealing with the five detainees and two officers―Domenici and Woffinden―were keeping the crowd of bystanders away from the detention area.
Grant was kneeling on the ground. Pirone was yelling in Grant's face, "Bitch-ass nigger, right. Bitch-ass nigger, right. Yeah." Defendant stepped behind Grant and grabbed his hands. Grant fell forward onto the ground. Pirone thought defendant had forced Grant to the platform, but defendant denied this.
Pirone and defendant placed Grant on his stomach. Pirone used his knees to pin Grant's neck to the ground. Grant protested, "I can't breathe. Just get off of me. I can't breathe. I quit. I surrender. I quit." Defendant ordered Grant to give up his arms, presumably so he could handcuff him. Grant responded that he couldn't move. Defendant repeatedly pulled at Grant's right arm, which apparently was under Grant's body.
At 2:10:49, two more BART officers, Knudtson and Flores, arrived on the platform and ran to the detention area. Knudtson tackled one of the bystanders after he (or the person next to him) threw a cell phone at Domenici and Woffinden, who were still keeping the crowd at bay. Flores took up position next to Domenici and Woffinden to help them keep the crowd back. Woffinden testified the officers succeeded in keeping the crowd out of the detention area. He never drew his firearm because the crowd's behavior did not warrant such a response.
Meanwhile, defendant was heard to exclaim, "fuck this." He told Pirone, "I can't get his hands, his hands are in his waistband, I'm going to tase him, . . . get back."
A cell phone video shows defendant tugging three separate times on his handgun, unsuccessfully trying to remove it from his holster. On the fourth try, defendant was able to remove his handgun. He stood up, held the weapon apparently with both hands, and fired a bullet into Grant's back. The time was 2:11:04.
Several witnesses said that defendant appeared surprised and dumbfounded after the shooting. One witness heard defendant say, "Oh, shit!" or "Oh, my God." Another heard defendant say, "Oh, shit, I shot him," or, "Oh God, oh shit, I shot him." Defendant holstered his handgun and put his hands to his head, then bent over and put his hands on his knees. Grant was still conscious and exclaimed, "Oh, you shot me, you shot me." Defendant handcuffed Grant and searched him for weapons. Grant was unarmed.
Shortly after the shooting, defendant talked to Pirone on the platform and said, "I thought he was going for a gun." In the minutes after the shooting he had several conversations on the platform with Pirone and three other officers, and said nothing about mistaking his handgun for his taser. Later, at the station, he cried and told a support person, Officer Foreman, that he thought Grant was going for a gun. He did not say he mistook his handgun for his taser.
Grant was taken to Highland Hospital. He had a single gunshot wound that penetrated his right lung and caused excessive blood loss. He died about three or four hours after having surgery.
Defendant testified as follows.*fn4
He did not intend to shoot Grant, but only to tase him. He mistakenly drew and fired his handgun. As defendant approached Grant to arrest him, Grant was on his knees with both hands behind his back. Grant fell to the ground; defendant did not push him. Grant ended up on his stomach with his right hand underneath his body. Defendant focused on getting control of Grant's right arm, which was tense. Defendant could not free it by pulling it out or by ordering Grant to give up his arm. Defendant did not hear Grant complain that he could not breathe. Defendant did not notice that Pirone had restrained Grant by placing his knee on Grant's neck.
Defendant saw Grant's right hand go into his pocket as if he were grabbing for something. Although he did not see a weapon, he thought Grant might be reaching for one. He decided to tase Grant. He stood up to get sufficient distance to properly deploy the taser, and announced, "I'm going to tase him. I'm going to tase him."
Defendant was not aware he had mistakenly drawn his handgun until he heard the shot. He looked down and saw he was holding his handgun. He testified, "There were no flags that popped up, there were no red flags." He was unaware he had to tug at his handgun three times before freeing it from its holster, and did not notice the lack of a red laser sight which would have emanated from his taser.
Defendant denied losing control of his emotions and judgment during the attempt to arrest Grant, and believed tasing Grant would have been consistent with BART policy. Defendant voluntarily resigned from the BART police force on January 7, 2009.
D. Other Defense Evidence
BART Police Sergeant Stewart Lehman testified that he trained defendant on the use of the taser. The training was the minimum six and one-half hours. Lehman believed the training period was "a minimum," but admitted the training was up to industry standards and the standards set by POST and the taser manufacturer. He testified that defendant did not have his own taser and holster issued to him, which would have enabled him to practice at home.
Greg Meyer, a consultant in police tactics, testified as an expert in the "use and deployment of tasers, taser training methods and procedures, laws of arrest, arrest procedures, and the use of lethal and non-lethal force." In his opinion, Grant's re-entering the BART train upon seeing Pirone and his standing up after being told to sit against the wall were sufficient to violate section 148―and thus, Grant was being lawfully arrested for resisting a police officer.
It was also Meyer's opinion defendant was entitled to rely, without question, on Pirone's order to arrest Grant. Meyer did acknowledge that Pirone's conduct was "loud and aggressive," and his calling Grant a "bitch-ass nigger" was aggressive behavior. He did opine, however, the use of a taser on Grant would have been appropriate because Grant was physically, as opposed to passively, resisting arrest.
Meyer testified regarding six documented instances of handgun/taser confusion in the United States and Canada between 2001 and 2006. In each of those six instances, the taser was holstered on the dominant side of the officer's body, close to the officer's handgun, for a strong-hand draw. Meyer was unaware of the color of the taser in each incident.
Meyer testified about defendant's taser training. In his opinion, the training "could have been better" and "had some deficiencies." Meyer believed defendant's 10 practice draws during training were inadequate for defendant to develop "muscle memory" with the taser, and that defendant should have had access to a taser and holster after training so he could practice draws. (The record shows that BART did not issue individual officers their own tasers.) In Meyer's opinion, defendant's training ...